\t 


i 


EVOLUTION  OF  LAW: 

SELECT    READINGS    ON    THE    ORIGIN   AND    DEVELOPMENT 
OF   LEGAL    INSTITUTIONS 

.Volume  HI 


.  FOEMATIYE  INFLUENCES  OF 
LEGAL  DEVELOPMENT  ' 


COMPILED   BY 

ALBERT    KOCOUREK 

PROFESSOR   OF    LAW   IN    NORTHWESTERN   UNIVERSITY 
AND 

JOHN   H.  WIGMORE 

PROFESSOR   OF    LAW   IN   NORTHWESTERN   UNIVERSITY 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1918 


''^k 


'4. 


Copyright,  1918, 
By  Little,  Bkown,  and  Company. 


All  rights  reserved. 

KISTO^^Yf^ 


NortoooTJ  ifrc00 

Set  up  and  electrotyped  by  J.  S.  Gushing  Co.,  Norwood,  Mass.,  U.S.A. 

Presswork  by  S.  J.  Parkhill  &  Co.,  Boston,  Mass.,  U.S.A. 


PREFACE 

For  the  statement  of  the  purpose  of  this  series  of  volumes,  we 
refer  again  to  the  preface  of  Volume  I. 

I.  The  first  volume  aimed  to  set  out  concrete  examples  and 
evidences  of  law  and  legal  institutions  as  found  in  ancient  general 
literature,  modern  observations  of  retarded  societies,  the  monu- 
ments  of  ancient  laws  and  codes,  and  in  ancient  legal  documents. 
So  far  as  was  feasible  the  materials  there  selected  fall  either  under 
the  category  of  "aiicient"  or  ''})riniltive. "  These  terms,  of  course, 
are  not  convertible  either  in  the  law  or  elsewhere.  What  is  ancient  w^ 
may,  or  may  not,  be  primitive;  and  what  is  primitive  may,  or 
may  not,  be  ancient.  The  preponderance  of  interest  for  the 
student  of  historical  jurisprudence  lies  in  what  is  primitive,  rather 
than  in  what  is  only  ancient;  but  the  probability  that  ancient 
laws  and  codes  contain  a  residue  of  greater  or  less  bulF'of  rudi- 
mentary legal  ideas,  we  believe  supports  the  combination  of  the 
ancient  and  the  primitive  in  a  general  survey  of  legal  evolution;  . 
and  such  combination  has  the  distmct  advantage  of  giving  a  dual/ 
basis  of  comparison  in  the  study  of  developing  legal  ideas.  / 

On  the  same  point,  it  may  also  be  said  that  for  the  purposes 
which  we  have  had  in  view,  a  logical  separation  of  strictly  primitive 
materials  from  such  as  show  development,  and  even  a  high  order 
of  development,  of  legal  ideas,  would  hardly  have  been  practicable. 
The  peoples  and  laws  represented  therefore  range  through  various 
stages  of  legal  and  social  condition,  from  the  Australian  tribes  or 
Seri  Indians  at  one  pole  to  the  Babylonians  or  Egyptians  on  the 
other. 

The  sources  of  ancient  and  primitive  law  are  to  be  found  not  only 
in  the  three  primary  classes  represented  in  the  first  volume; 
namely,  (i)  ancient  literature,  (ii)  modern  observations  of  re- 
tarded peoples,  and  (iii)  the  records  of  ancient  laws  and  legal  trans- 
actions ;  but  valuable  information  is  afforded  also  by  such  sec- 
ondary  departments   of   study   as    (i)    linguistics   and   folklore. 


OQOOil  I 


L 


VI  PREFACE 

(ii)  child  psychology  ^  and  animal  behavior,  and  (iii)  prehistoric 
anthropology  and  archseology.  The  first  and  second  groups,  as 
may  be  seen,  have  a  close  relation  point  by  point.  The  secondary 
group  of  inquiries,  so  far  as  represented,  is  drawn  into  the  present 
volume,  while  more  logically  (though  less  conveniently)  connected 
with  the  plan  of  the  first  volume.  We  regard  the  secondary 
group  as  one  of  great  importance,  and  it  is  subordinate  in  treat- 
ment only  because  of  the  great  difficulty  of  assembling  the  right 
materials  for  a  course  of  systematic  readings  on  law  and  legal 
institutions. 

II.  The  second  volume  is  devoted  to  an  expository  treatment 
of  legal  ideas  and  legal  institutions  in  their  genetic  and  evolutionary 
bearing.  The  first  two  volumes  are  intended  to  be  used  concur- 
rently. In  the  great  luxuriance  of  writing  on  matters  of  legal 
history  and  legal  evolution,  it  was  not  easy  to  discover,  outside  of 
such  well-known  authorities  as  Maine,  Post,  Leist,  Kohler,  Le- 
tourneau,  Laveleye,  treatment  of  legal  ideas  based  on  a  general 
view  of  the  world's  legal  phenomena.  One  authority  regrettably 
absent  in  our  list  will  illustrate  the  proposition.  The  studies  of 
Dareste  (and  others  might  be  named)  are  confined  so  closely  to  a 
particular  period  or  a  particular  people  that  the  universal  element 
in  the  law  which  we  have  sought  to  emphasize,  is  left  in  the  back- 
ground. 

We  have  prefeoiei-ganeralization,  although  the  caution  must 
Constantly  be  kept  before  the  reader  to  whom  this  subject  is  a  new 
one,  that  nothing  in  this  field  of  investigation  is  more  dangerous. 
It  may  well  be  doubted  whether  a  sufficient  amount  of  scientific 
and  critical  labor  has  been  expended  even  yet  in  the  collation  of 
facts  from  which  to  draw  a  considerable  number  of  inferences 
having  anything  like  general  or  universal  validity. «  Until  a  body 
of  valid  generalizations  can  be  constructed,  historical  jurispru- 
dence will  remain  an  inchoate  scienc^  The  second  volume  shows 
that  a  good  beginning  already  has  been  made,  and  it  may  reason- 
ably be  hoped,  when  this  science  has  been  as  long  cultivated  as 
the  science  of  philology,  that  comparable  results  will  have  been 
attained. 

It  is  precisely  here,  we  think,  that  "  natttt^Llaw "  (that  drome- 
dary which  has  carried  the  burden  of  many  a  caravan  of  juridical 
delusion  from  the  days  of  the  ancient  Greeks  up  to  the  present  day) 

1  As  illustrative  of  what  may  be  accomplished  in  this  field  which  has 
only  very  rarely  touched  on  legal  institutions,  see  "Nursery  and  Savagery'* 
by  Elsie  Clews  Parsons,  in  '*  The  Pedagogical  Seminary  "  (Clark  University), 
Vol.  XXII,  2,  296. 


PREFACE  VU 

has  its  peculiar  place.  Therejappears^to  he  a  natural  law  of  de- 
velopment  o\  legal  ideas,  ^  uniform  and  generaj^n  its  operation  as 
Grimm's  law  in  phonetics.  The  discovery  of  the  content  of  this 
natural  law  is  the  task  which  the  investigators  in  this  field  will 
have  to  perform,  testing,  verifying,  and  replacing  the  hypotheses 
already  attempted,  based  on  the  rich  accumulation  of  materials 
now  available  and  still  being  industriously  collected  by  the 
workers  in  ethnology,  ethnography,  anthropology,  archaeology, 
and  a  variety  of  other  fields. 

The  experimental  method  unfortunately  cannot  be  used  in  this 
science  under  the  same  favorable  conditions  as  in  the  physical 
sciences.  History  and  the  physical  monuments  of  man's  activi- 
ties have  been  the  chief  reliance  in  earlier  decades  in  tracing  the 
growth  of  the  law.  \X^ater,  when  the  essential  truth  of  the  unity 
of  the  human  mind  found  a  jjlacc,  direct  observation  became  the 
leading  method  of  evolutional  investigation  ;  but  the  experimental 
method  has  only  been  at  most  suggested.  In  this  connection 
reference  may  be  made  to  the  chapter  by  Mr.  Johnson  on  rudi- 
mentary society  among  boys,  reprinted  in  this  volume,  and  to  the 
study  by  Mr.  Shinn,  on  mining  camp  customs.^  Both  of  these 
studies  are  interesting  and  suggestive,  far  beyond  the  actual  results 
brought  out,  as  indicating  the  possibility  of  a  new  instrument  to 
supplement  our  knowledge  of  the  course  of  the  development  of 
legal  institutions. 

The  records  of  written  history  are  scanty  and  embrace  but  a 
small  portion  of  man's  struggles  and  achievements.  That  so 
much  has  been  extracted  from  these  fragments  is  a  monument  to 
the  efforts  made  to  probe  out  the  secrets  of  the  past.  Doubtless 
much  may  yet  be  brought  to  light,  but  in  the  meantime  the  in- 
vestigations in  this  field  must  push  on  in  other  directions.  The  - 
possibility  of  direct  observation  of  savage  and  barbarous  tribes  is 
daily  being  narrowed.  The  time  approaches  when  savagery  in 
the  world  will  be  an  extinct  phenomenon,  and  when  barbarism 
will  be  so  far  contaminated  with  the  vices  and  virtues  of  what  we 
please  to  call  civilization,  that  this  avenue  of  insight  into  evolu- 
tion will  become  more  and  more  corrupted,  and,  eventually,  will 
be  abandoned.  When  that  day  comes,  resort  must  be  had  to  a 
kind  of  experimental  method.  Such  a  method  will  have  difficulty 
in  justifying  itself  as  scientific.  The  same  doubt  arose  when  the 
method  of  direct  observation  of  retarded  peoples  began  to  be 
used.  Both  methods  are  based  on  a  fundamental  psychological 
^  Johns  Hopkins  University  Studies  (1884). 


VIU  PREFACE 

premise,  and  it  would  seem,  if  this  premise  is  valid  in  one  case, 
that  it  should  be  equally  valid  in  the  other. 

There  is  a  special  kind  of  fascination  in  attempting  here  what 
seems  to  have  been  done  with  great  success  in  the  reconstruction 
of  fossil  remains  of  extinct  animals.  A  single  bone  may  lead  to  the 
reconstruction  of  the  entire  skeleton  based  on  the  size,  shape,  and 
function  of  the  fragment  used  as  a  starting-point.  Biological 
function  however  is  immeasurably  more  simple  than  legal  func- 
tion ;  the  one  is  related  to  the  world  of  physical  phenomena,  the 
other  to  the  world  of  mental  and  physical  facts.  It  is  not  difficult 
to  see  that  the  organization  of  physical  functions  by  way  of  recon- 
struction, while  undoubtedly  presenting  magnificent  difficulties, 
requires  a  smaller  volume  of  contingent  factors  which  enter  into 
the  problem  of  solution,  than  the  organization  of  legal  phenomena 
from  isolated  discoveries.  And  yet,  all  we  mean  to  say  is  that  the 
difficulties  Are  only  greater,  and  not  that  the  thing  itself  is  im- 
possible. /On  the  contrary,  it  is  our  belief  that  with  greater  pene- 
tration into  the  mental  life  of  man  ^  in  the  various  stages  of  his 
evolution,  there  will  be  afforded  the  necessary  basis  for  great  re- 
constructions in  the  evolution  of  law. )  These  will  surpass  in  value 
and  interest  the  important  work  already  accomplished  by  the 
relatively  small  number  of  investigators  who  have  enriched 
our  knowledge  of  legal  institutes  within  the  last  fifty  or  sixty 
years. 

/  This  point  of  attack  must  be  the  basis  of  all  future  explanation 
(and  study.  When  efforts  in  this  direction  are  aided  and  guided 
by  scientific  instruments  of  precision,  we  may  expect  that  a  fairly 
complete  account  may  be  given  of  the  origin  and  development  of 
all  legal  ideas,  and  that  the  fragments  of  legal  life  as  discovered  to 
us  in  the  remains  of  distant  eras  will  be  explained,  and  explained 
perhaps  in  many  respects  differently  than  we  now  understand 
them,  and  with  meanings  of  considerable  importance  to  us  as  we 
think  of  the  law  as  the  center  of  all  social  activities  with  a  cultural 
mission. 

Emphasis  of  the  mental  life  will  greatly  enrich  this  science  in  the 
direction  of  differentiations  not  now  recognized  or  slurred  in  favor 
of  a  simpler,  but  less  accurate  view  of  legal  development.  Mr. 
Innes  has  furnished  an  interesting  illustration  of  this  in  his 
comparison  of  eastern  and  western  methods  of  administering 
justice.^ 

1  Cf.  Jung,  "Psychology  of  the  Unconscious." 

2  Hibbert  Journal,  Jan.  1913. 


PREFACE  IX 

The  apparently  (and  only  apparently)  inefficient  methods  of  the 
Mohammedan  in  dispensing  justice  cannot  be  explained  on  the 
basis  of  the  customary  thought  of  our  time  and  place.  A  sym- 
pathetic understanding  of  the  oriental  point  of  view  is  necessary 
to  overcome  the  narrow  prejudice  and  the  hasty  judgment  which 
would  give  an  entirely  erroneous  idea  of  the  relative  position  and 
value  of  a  system  of  law  applied  under  conditions  different  from 
those  which  surround  the  observer. 

Th^    l^W  fhe^^^^^^    ^'^^    rf^lqfiv-^    fr>    q]|    j^g    P^'l?.^'^    of  COUtact.        It 

is  one  of  the  tasks  of  this  kind  of  investigation  while  taking  account 
of  the  common  elements  in  human  nature  which  predominate  to 
produce  a  common  and  regular  course  of  developmeijt  in  legal  in- 
stitutions, also  to  note  the  variations  which  depart  from  the  main 
trunk  of  growth  and  throw  out  unfoldments  which  require  special 
investigation  and  treatment. 

The  search  for  unity,  which  is  responsive  to  something  funda- 
mental in  the  human  mind,  has  led  to  the  greatest  diversity  not 
only  in  the  physical  sciences  but  perhaps  especially  in  the  social 
sciences.  Like  generalizations  too  rapidly  invented,  the  insist- 
ence upon  unifying  principles  has  doubtless  been  something  of  a 
hindrance  in  the  advancement  of  a  general  science  of  legal  evolu- 
tion. J  The  presence  in  all  systems  of  law  of  encysted  ideas  which 
marlTthe  accidents  of  history,  and  of  disused  functions  which  are 
carried  along  in  the  passage  of  time,  is  frequently  misunderstood, 
especially  when  such  elements  are  emphasized  as  being  typical  of 
the  general  level  of  progress  attained  in  the  particular  system  of 
law  under  consideration.  The  extent  to  which  outgrown  ideas 
persist  in  legal  evolution  when  first  recognized  is  striking.  In 
proof  of  this  we  have  only  to  look  about  our  system  of  law. 
We  shall  not  look  far  before  we  find  ideas  which  have  lived  through 
millenniums  of  the  world's  history  and  remain  now  as  rudiments 
whose  existence  is  either  ignored  or  whose  original  function  is 
misapprehended.  In  examining  an  ancient  code  there  is  always 
some  danger  of  interpreting  as  distinctive  what  is  merely  bizarre 
when  perhaps  the  phenomenon  observed  is  only  a  relic  of  a  for- 
gotten past. 

We  have- already  said  that  in  our  view  of  the  subject^its  greatest 
utility  —  and  we  do  not  mean  to  assert  that  a  thing  must  be  useful 
to  be  valuable  —  lies  in  the  possibility  of  applying  the  laws  of  legal 
evolution  to  the  problems  of  the  present  day,  and  in  forecasting 
the  immediate  future  movement  of  social  forces.  There  is,  of 
course,  a  contrast  between  history  and  value,  but  the  realization 


X  PREFACE 

of  a  value  is  inexorably  bound  up  with  history  and  conditions.  A 
modern  code  of  partnership  law  or  divorce  law  may  be  an  excellent 
basis  for  the  regulation  of  the  commercial  and  social  situation 
here  and  now ;  but  the  same  code  would  as  certainly  fail  of  under- 
standing, use,  or  even  authority  if  imposed  on  the  Khonds  or  Bogos. 
We  do  not  wish  to  underestimate  the  notion  of  value  but  it  must 
be  insisted  that  a  future  value  is  not  the  same  as  a  present  value ; 
and  that  for  human,  practical  purposes  what  is  realizable  and  ex- 
istent is  of  far  larger  importance  than  that  which  is  only  specu- 
latively realizable  and  as  yet  unrealized.  /The  true  basis  of  the 
science  of  legislation  is  found  in  the  history  of  the  race.  The 
aberrations  and  misdirection  of  legislative  effort  in  the  various 
organs  of  government  are  due  to  the  variant  interpretation 
of  value  by  the  lawmaker  in  disregard  of  the  facts  of  legal 
history. 

There  are  some  things  which  legislation  is  incapable  of  doing, 
/  and  others  which  it  ought  not  to  attempt.  The  first  kind  of  legis- 
lation  results  in  the  dead-letter  law ;  ^nd  the  second  produces  the 
fiction  and  spurious  interpretation  —  the  efforts  of  society  to 
make  an  unfit  law  harmonize  with  the  capacity  of  society  to  re- 
ceive it.  The  statute  books  are  full  of  the  dead-letter  laws,  and  the 
volumes  of  reports  are  crowded  with  the  evidence  of  fictions  and 
spurious  interpretation.  Perhaps,  notwithstanding^  all  efforts,  it 
will  always  be  thus ;  for  the  human  mind  cannot  be  measured  as 
with  a  tape-line,  and  the  best  that  science  can  hope  to  do  is  to 
approximate  the  course  of  social  development,  and  avoid  the  ex- 
treme discordances  which  hamper  the  flow  of  progress. 

While  advocating  the  importance  of  historical  studies  as  having 
sort  of  practical  bearing,  it  must  be  admitted  that  the  inter- 
pretation of  the  facts  of  history  in  an  evolutionary  sense  is  hardly 
less  difficult  than  the  ascertainment  of  values.  We  have  volumes 
upon  volumes  of  ethnological  and  anthropological  reports  gathered 
from  the  ends  of  the  earth.  But  what  do  these  reports  mean? 
What  underlying  principles  do  they  involve  ?  This  is  the  mission 
of  interpretation  and  generalization.  When  the  complexity  of 
the  problem  is  fully  appraised,  it  can  no  longer  be  doubted  that 
the  great  future  of  this  study  will  be  that  of  drawing  out  of  this 
great  mass  of  accumulated  and  accumulating  facts  the  underlying 
threads  invisible  to  the  unpracticed  eye,  —  threads  which  bind  to- 
gether the  institutions  of  men  living  in  society,  into  definite  figures, 
which  again  in  turn  require  interpretation  to  discover  their  function 
in  the  fabric  of  life.     The  problem  here  is  simply  another  aspect  of 


PREFACE  XI 

what  is  the  problem  in  every  other  science.  At  its  foundation  it 
touches  the  ultimate  realities,  and  while  we  could  not  hope  in  this 
series  of  readings  to  go  farther  than  the  preliminary  stage  of  point- 
ing out  the  unity  and  art  in  the  weaving  of  the  tissues  of  legal  ideas, 
we  believe  we  can  do  no  less  than  indicate  our  own  impression  of 
the  far-reaching  importance  of  these  inquiries. 

One  more  qualification  seems  necessary  in  any  claim  of  a  prac- 
tical mission  for  historical  studies.  This  is  the  psychological 
qualification.  Whether  reason  is  only  a  mechanical  expression 
of  forces  in  a  chain  of  causation,  and  whether  consciousness  is  only 
an  epiphenomenon,  are  questions  which  concern  the  philosopher 
rather  than  the  lawyer ;  and  yet  questions  of  this  sort  inevitably 
project  themselves  into  the  realm  of  the  law  when  an  attempt  is 
made  to  deal  with  legal  ideas  in  fundamental  terms.  These  read- 
ings do  not  seek  to  deal  with  problems  of  this  kind.^ 

This  qualification  so  far  as  it  bears  on  the  present  point  is  exactly 
represented  in  the  familiar  controversy  between  Savigny  on  one 
side  and  Jhering  on  the  other.  If  the  method  by  which  the  law 
has  grown  is  more  akin  to  an  unconscious  process  rather  than  a 
voluntary,  reasoned,  and  consciously  selected  development,  then 
it  must  be  apparent  that  the  function  of  human  reason  in  the  midst 
of  other  phenomena  has  an  autonomy  which  is  at  least  highly 
limited,  if  not  actually  fictitious.  As  to  all  this,  however,  the 
cautious  reader  will  judge  for  himself. 

III.  After  thus  summing  up  the  earlier  issues  of  this  series,  we 
come  now  to  an  explanation  of  the  present  volume.  It  is  divided 
into  three  parts,  as  follows  :  First,  an  introductory  part  deals  with 
the  criteria  of  legal  evolution  and  the  methods  of  its  study.  Treat- 
ment of  these  ideas  is  fundamental  for  the  purpose  of  any  dis- 
cussion of  either  social  or  legal  development.  When  a  comparison 
is  made  between  the  institutions  of  dift'erent  peoples,  it  is  necessary 
that  there  should  be  some  basis  of  appraisement  of  the  ideas  com- 
pared ;  otherwise  we  should  be  able  only  to  note  differences  and 
similarities  without  being  able  to  affirm  of  them  any  quality  what- 
soever. To  what  extent  the  idea  of  progress  may  be  evaluated 
by  other  than  purely  material  tests,  or  to  what  degree  the  worth 
of  an  institution  may  be  affected  by  relation  to  surrounding 
circumstances  need  not  be  pointed  out. 

Legal  ideas  are  not  ends  in  themselves,  but  only  means  to  ends. 

1  Reference  may  be  made  to  The  Modern  Legal  Philosophy  Series  for 
various  attempts  to  treat  these  matters  so  far  as  they  are  of  importance 
in  legal  theory. 


Xll  PREFACE 

It  is  a  peculiarity  of  the  human  mind  to  attach  to  ideas,  and  to  cus- 
toms long  familiar,  the  attributes  of  permanence,  rationality,  and 
necessity,  even  at  the  moment  when  nothing  remains  of  them  but 
the  outer  shell,  covering  matter  already  decayed  and  worm-eaten. 
In  such  times  of  crisis  there  ensues  a  period  of  confusion  and 
breakdown  and  then  an  up-building  process,  which  goes  on  again 
to  its  maturity  and  decay.  In  our  own  day  we  may  see  as  one  of 
the  numerous  examples  of  this  development  the  marked  changes 
wrought  in  the  relation  of  employer  and  employee.  Another 
generation  will  probably  find  this  department  of  the  law,  and 
perhaps  others,  entirely  transformed  in  comparison  with  the  law 
of  the  last  generation.  The  meaning  of  the  term  "  Progress  " 
is  a  problem  which  lies  at  the  base  not  only  of  the  law,  but  of  all  of 
the  social  sciences. 

Secondly,  the  instant  volume  attempts  to  deal  with  the  factors 
of  legal  evolution.  * 

The  term  "factor"  or  "influence"  is  ambiguous  and  vague. 
Its  leading  implication  is  causation,  but  causes  are  infinite.  Nature 
knows  no  classification  of  its  phenomena,  and  we  must  artificially 
create  them  by  setting  up  our  own  mental  standards  in  which 
certain  things  are  emphasized  to  the  exclusion  of  all  others.  The 
favored  thing  is  called  the  eflficient  cause;  but  an  inspection  of 
our  efficient  cause  in  relation  to  social  facts  will  show  it  kaleido- 
scopically  merging  with  other  efficient  causes.  Thus  a  geophysic 
factor  may  in  turn  be  an  economic  factor,  or  even  a  biologic 
\  factor. 

V  Of  these  factors  or  influences,  the  following  find  representa- 
tion :  geophysic,  economic,  biologic,  religious,  racial,  political, 
psychologic,  and  social. 

The  first  of  these  will  justify  a  word  of  explanation.  In  spite 
of  the  importance  of  the  claims  made  for  the  geophysic  influence 
upon  social  institutions,  and  the  great  array  of  names  ^  which  are 
associated  with  these  claims,  it  seems  odd  that  so  little  is  avail- 
able to  show  in  a  concrete  way  the  influence  of  climate  or  soil  on 
specific  legal  ideas.  This  again  may  indicate  how  much  remains 
to  be  done  in  the  field  of  legal  and  social  evolution  in  the  collection 
of  facts,  ^t  is  easy  to  understand  that  with  man's  primary 
dependence  on  his  environment  the  character  of  this  environ- 
ment must  have  had  an  important  connection  with  the  kind  and 

1  Among  others,  Aristotle,  Ritter,  Buffon,  Herder,  Montesquieu,  Guyot, 
Buckle,  Ratzel,  Peschel,  R^clus,  Metchnikoff,  Le  Play,  Demolins,  Ripley, 
Penck,  Dexter,  Semple  (represented  by  a  chapter  in  this  volume), 
Huntington,  Simkhovitsch. 


PREFACE  Xlll 

number  of  human  activities  expressed  eventually  in  legal  customs 
and  definite  legal  institutions^/ 

It  probably  will  be  unsafe  to  venture  far  in  this  direction  in 
claiming  for  physical  conditions  specific  determinative  influences 
on  the  origin  and  development  of  legal  ideas  until  more  information 
is  assembled.  It  is  not  improbable  either  that  when  such  infor- 
mation is  at  hand,  more  careful  consideration  will  develop  the 
conclusion  that  too  much  has  sometimes  been  claimed  for  purely 
external  conditions.  Such  claims  can  easily  have  an  apparently 
sound  basis  and  yet  he  misleading,  in  this,  that  the  coincidence  of 
circumstances  favoring  an  institution  may  be  erroneously  regarded 
as  causative.  For  example,  polyandry  may  be  seen  as  the  result 
of  physical  conditions  marked  by  a  low  temperature  unfavorable 
to  the  production  of  crops  where  agriculture  is  the  sole  or  chief 
means  of  subsistence.  It  may  be  plausibly  argued,  as  by  McLen- 
nan, that  where  numerous  separate  households  are  economically 
impossible,  infanticide  and  a  plurality  of  husbands  are  the  natural 
result.  In  the  same  way  polygam;v  may  be  explained  as  a  con- 
sequence of  economic  abundance.  (Here  as  in  all  other  contro- 
versies the  difficulty  is  in  the  point  of  emphasis  of  the  factors 
involv'ec/.  Undoubtedly  much  of  interest  and  truth  can  be  ex- 
tracted from  man's  geophysical  relations,  as  influences  of  legal 
evolution,  even  if  we  do  not  go  so  far  as  to  say  that  man  and  his 
mores  are  things  of  the  earth  and  are  governed  by  the  same  physical 
laws  as  determine  the  shape  of  a  crystal  or  the  successions  of  plant 
life. 

As  illustrative  of  such  connections  we  may  point  to  the  rise  of 
commerce  and  commercial  institutions  contiguous  to  the  Medi- 
terranean Sea,  and  in  warm  climates  w^here  nature  renders  a 
surplus,  and  the  absence  at  the  same  time  of  anything  but  the 
most  rudimentary  commerce  elsewhere.  Undoubtedly  a  physical 
explanation  will  answer  here.  The  road  to  commerce  existed  and 
commerce  followed  the  road ;  but  farther  back  there  were  yet 
other  physical  and  psychical  conditions  which  were  necessary  to 
suggest  the  phenomenon  which  appeared. 

While  it  may  be  impossible  to  find  an  instance  where  climate  or 

land  has  generated  a  legal  idea  or  a  legal  institution,  there  can  be 

no  doubt  that  the  geophysic  factor  has  been  at  least  effective  in 

accelerating  or  multiplying  legal  phenomena.     Without  attempt- 

'  See,  for  example,  for  the  influence  of  rainfall  on  the  birth  rate,  the 
death  rate,  and  marriage,  "Response  to  Rainfall  in  India",  by  Leonard  O. 
Packard,  in  Bull.  Am.  Geographical  Soc,  Vol.  XLVII,  2  (Feb.  1915), 
pp.  81-99  (97,  8). 


XIV  PREFACE 

ing  to  classify  the  groups  of  cases  where  land  or  climate  has  had 
such  a  secondary  influence  based  on  other  primary  factors,  it  can- 
not be  doubted  that  it  may  modify  national  character,  that  it 
may  affect  the  economic  basis  of  legal  relations,  that  it  may  change 
the  current  of  legal  history  by  cutting  a  people  off  from  surround- 
ing social  influences,  and,  conversely,  that  geographical  situation 
may  favor  a  social  environment.  In  this  sense  the  geophysic  factor 
is  all-important  for  specific  legal  histories,  if  not  also  for  legal  his- 
twy  in  the  abstract  —  legal  evolution. 
^  '  The  last  division  of  the  present  volume  attempts  to  cover  in 
general  the  processes  which  have  been  instrumental  in  organizing 
human  groups  into  definite  social,  political  and  legal  structures, 
and  the  sustaining  forces  which  have  governed  their  development..„ 
We  have  reproduced  some  of  the  leading  interpretations  of  the 
concept  society,  although,  manifestly,  it  has  been  impracticable 
to  give  place  to  each  variety  of  sociological  theory  variously  repre- 
sented in  chief  by  such  writers  as  Schaffle  or  Worms,  Small, 
Brentano,  Coste,  Fouillee,  De  Greef,  Durkheim,  Simmel,  Tonnies, 
and  others,  each  of  whom  represents  a  type  more  or  less  distinct 
from  any  of  those  entered  in  this  work.  For  full  treatment  of 
sociological  theory  the  reader  must  be  referred  to  its  own  literature, 
but  the  material  from  sociology  included  here  is  justified  by  the 
belief,  contrary  perhaps  to  legal  tradition,  that  law  itself  is^onJx 
a  social  phenomenon,  and  is  not  to  be  fully  understood  in  detach- 
ment  from  the  human  bases,  necessities,  and  forces  from  which  it 
arises^ 
\  These  foundations  of  legal  evolution  are  physical  and  psychical ; 
but  coincident  with  them  is  an  universalizing  element  which  tran- 
scends mere  physical  necessity  and  the  complex  interplay  of 
psychic  disposition,  tending  always  in  infinite  detail  and  in  chang- 
ing fortune  to  a  refinement  of  legal  phenomena  and  higher  stages 
of  adaptation  of  legal  institutions  to  the  capacities  and  ends  of 
human  society.  /  Spencer  has  already  made  thoroughly  familiar 
tjie  principle  of  differentiation  in  the  biotic  and  social  realm. 
(Maine,  also,  has  called  attention  to  the  same  thought  in  legal 
evolution  in  his  casual  comment  on  the  fewness  of  legal  ideas  in 
the  ancient  world.  Thus,  for  example,  the  family  (an  institution 
which  preponderates  so  largely  in  all  studies  on  legal  evolution), 
in  primitive  times,  contained  within  itself  the  entire  stock  of  legal 
ideas  which  emerged  only  after  a  long  process  of  economic  and 
social  differentiation  in  the  functions  of  the  grou£y/ 
The  economic  and  legal  relation  is  one  which  is  particularly 


PREFACE  XV 

intimate,  and  it  is  that  relation  which  has  given  to  us  the  category 
of  what  Austin  calls  pervasive  legal  ideas.  It  is,  of  course,  ab- 
solutely clear  that  in  a  society  which  is  not  a  closed  economic 
unity,  a  Robinson  Crusoe  as  it  were,  there  must  be  ideas,  how- 
ever rudimentary,  of  possession,  liability,  and  hostages  for  pay- 
ment or  securities,  ideas  which  rest  on  the  very  simplest  objective 
foundations. 

An  increase  of  economic  function  implies  something  more  than 
a  variation  of  physical  motion.  It  involves  likewise  a  mental 
exertion  as  the  propulsive  force  of  their  existence.  As  these 
functions  increase,  legal  ideas  slowly  and  unsteadily  sprout  out 
of  the  soil  of  necessity  and  throw  out  twigs  and  branches  which, 
while  in  part  dependent  on  the  support  and  sustenance  of  the 
earth,  have  their  chief  life  and  function  in  the  sphere  of  air  and 
light. 

As  legal  ideas  ^row  and  differentiate  they  also  become  more 
ideal,  not  necessarily  in  the  ethical  sense,  but  in  the  sense  of  being 
iirtellectual  creations.  This  may  be  illustrated  by  the  idea  of 
ownership^  Primitive  man  was  incapable  of  the  notion  of  owner- 
ship apart  from  possession,  and  any  dealing  with  things  which 
might  have  involved  such  legal  transactions  as  sale  or  mortgage- 
would  have  been  entirely  too  fanciful  and  unreal  to  be  understood. 
This  tree  of  legal  evolution,  it  would  now  seem,  on  purely  logical 
grounds,  has  reached  its  greatest  theoretical  growth.  Variations 
and  adaptations  in  detail  are  possible  and  in  many  respects  neces- 
sary, but  great  organic  or  systemic  evolutive  movements  are  no 
longer  possible.  The  same  causes  produce  the  formal  similarities 
among  the  various  systems  of  law.  They  are  like  trees  in  a  forest, 
differing  in  species,  but  all  being  alike  in  genus.  \ 

Legal  rules  and  institutions  in  their  earliest  development  appear  ' 
as  instinctive  adaptations  of  human  beings  on  the  plane  of  physical 
necessity.  Food  must  be  gotten,  shelter  must  be  provided,  the 
sex  instinct  must  find  an  outlet,  and  defense  against  enemies  must 
be  established.  Law  in  thisstage  is  germinal,  and  so  far  as  there 
appears  to  be  any  regularity  and  continuity  of  response  to  needs, 
they  are  of  an  unreflected  kind  stimulated  by  the  hard  conditions 
of  nature.  We  are  here  far  from  the  Austinian  theory  of  law.  It 
is  plain,  also,  that  "natural  man"  suspects  nothing  of  the  Puchta 
basis  of  law.  The  element  of  physical  force  displayed  on  one  hand 
by  the  warring  aspect  of  nature,  and  on  the  other  by  the  hostile 
instinct  of  mankind  generated  in  fear  and  mystery,  is  dominant. 
Hobbes  has  aptly  described  the  reign  of  nature  as  "  nasty,  brutish. 


XVI  PREFACE 


and  short";  and  well  may  the  savage  greet  the  rising  sun  with 
shrieks  of  lamentation,  for  the  day  is  one  of  misery,  hunger,  and 
death.  ^tj^:^ 

No  theory  of  humayinstitutions  has  been  so  far  from  the  truth 
as  that  of  thergaraHisaical^reigiTof  natuy^.  This  may  be  asserted 
safely,  even  though  the  sciences  which  discover  to  us  the  history 
of  the  earth  and  the  records  of  buried  ages  can  probably  minister 
little  to  knowledge  of  the  first  steps  up  of  the  human  race  so  far  as 
concerns  the  absolute  origin  of  law.  If  the  theory  of  organic 
evolution  is  to  be  accepted,  it  is  also  more  than  probable  that  at 
the  beginning  of  the  human  stage  of  progress,  the  primary  activi- 
ties of  life  were  already  considerably  standardized  by  some  sort 
-•of  cojnpromise  of  conflicting  brute  forces  —  a  compromise  in 
which  there  yet  appeared  a  nobler  strain  shown  in  attachment 
to  offspring,  and  even  in  the  fact  of  any  form  of  peaceable 
human  association  whatsoever,  which  later  was  destined  to  take 
on  a  specific  ethical  meaning. 

In  the  earliest  stage  of  legal  evolution  of  which  we  have  any 
reliable  information,  furnished  principally  by  modern  observations 
of  savage  groups,  the  law  has  ceased  to  be  instinctive  and  has  al- 
ready crystallized  into  fixed  social  habits  and  ideas.  Physical 
force  within  the  group  tends  to  become  latent  and  to  be  replaced 
by  the  equally  efficacious  sanctions  of  religion  and  superstition. 
The  taboo  is  a  sufficient  implement  of  restraint  for  the  average 
tribesman,  and  outlawry  is  as  rarely  exceptional  as  our  still  savage 
use  of  capital  punishment.  In  this  stage  mankind  has  achieved 
a  distinct  gain  over  the  forces  of  nature.  The  fact  that  time  and 
opportunity  have  conjoined  to  formulate  a  body  of  superstitious 
beliefs  and  rituals  unmistakably  shows  a  remainder  over.  The 
existence  of  these  beliefs  and  of  these  ceremonies  is  also  an  ethical 
gain  in  that  the  harshness  and  brutality  of  physical  coercion  is 
replaced  by  the  more  refined  pressure  of  religious  conviction.  Not 
that  the  religious  bond  weighs  less  heavily  than  the  shackles  of 
physical  restraint,  for  "what  the  whole  community  comes  to  be- 
lieve in,  binds  the  individual  as  in  a  vise."  Nor  yet  does  the 
existence  of  a  new  set  of  restraints  mean  absence  of  the  harsher 
conditions  of  life ;  these  conditions  remain  and  will  continue  until 
mankind  has  conquered  economic  necessity. 

If  a  generalization  may  here  be  ventured,  it  would  seem  that 
one  of  the  standards  of  social  progress  is  the  progressive  elimina- 
tion of  the  physical  and  material  elements  in  the  conflicts  of  life, 
and  the  substitution  therefor  of  religious,  ethical,  and  intellectual 


PREFACE  XVU 

forces.  In  triqaLsQciety,  legal  order  is  accomplished  by  a  variety 
of  psychical  restraints  which  eventuate  in  physical  coercion  only 
by  way  of  relapse  from  the  normal  conditions  of  legality;  but 
outside  the  tribal  association  these  psychical  bonds  do  not  reach, 
and  physical  measures  are  the  normal  measures  of  equalizing  inter- 
tribal conflicts.  Modern  states  have  at  once  lost  and  gained  some- 
thing in  their  evolution  out  of  group  society.  Intellectual  re- 
straints have  been  substituted  for  emotional  restraints;  but 
intellectualism  as  a  cohesive  force  is  a  complex^  a  hydra-headed 
entity  differing  in  marked  degree  from  the  relatively  simple  psycho- 
logical bond  w^hich  is  sufficient  to  organize  primitive  societies. 
Primitive  society  from  the  point  of  view  of  psychological  function 
is  to  the  modern  state  as  an  amoeba  to  a  mollusk. 

In  their  external  relations  modern  states  have  not  shown  com- 
parable development;  resort  to  force  is  still  the  normal  method 
of  adjusting  essential  conflicts  of  interest,  and  human  nature  will 
yet  erect  many  hecatombs  before  there  can  or  will  be  attained  a 
solidarity  of  the  world  based  on  a  principle  which  will  be  recognized 
by  all  nations  and  peoples. 

•  Another  cognate  movement  may  also  be  observed  which  has 
been  especially  conspicuous  within  the  centuries  of  recorded  his- 
tory —  the  expansion  of  liberty  from  the  multiplied  trammels 
which  have  held  it  enslaved,  and  which  still  in  the  greatest  variety 
of  forms  curb  the  movements  in  thought,  and  action  of  individuals, 
societies,  and  States. 

The  struggle  for  liberty  has  also  been  the  struggle  of  the  law. 
It  has  undergone  the  same  general  evolution  as  the  law  itself,  and 
has  been  influenced  by  the  same  internal  and  external  forces  which 
have  governed  the  course  of  legal  institutions. 

In  the  beginning,  the  overshadowing  forces  of  nature  and  fear 
o'f  enemies  held  man  to  the  narrovvest "circles  of  existence.  Liberty, 
thought  of  as  an  expression  of  personality  in  the  earliest  stages, 
can  hardly  be  said  to  have  existed.  The  foundations  of  restraint 
of  liberty  are  physical  and  economic.  Later  when  man  (and  we 
mean  always  man  in  some  sort  of  association  with  his  fellows) 
has  in  a  limited  way  overcome  his  environment,  and  has  invented 
an  accepted  explanation  of  the  mysteries  of  nature,  and  when  the 
physical  and  economic  chains  have  been  lengthened,  new  shackles 
of  a  more  refined  kind  are  added.  /This  tendency  to  subject  the 
individual  to  restraints  either  physical  or  psychical  has  persisted 
into  the  present  day ;  for  the  history  of  life  has  been  a  chapter 
of  bondage.     So  accustomed  has  mankind  become,  throughout 


XVlll  PREFACE 

the  long  history  of  the  human  race,  to  restraint  as  a  part  of  nature, 
that  when  man  is  freed  from  one  set  of  bonds,  he  instinctively 
forges  for  himself  others. 

"Man  is  born  free,  and  he  is  everywhere  in  chains,"  was  the 
sounding  statement  which  functioned  as  a  bellows  for  the  spark 
of  a  revolution.  On  the  contrary,  man  was  not  born  free,  and  no 
revolution  has  done  anything  more  than  to  effect  a  substitution 
of  one  kind  of  restraint  for  another.  From  one  point  of  view 
societies  and  systems  of  law  may  be  regarded  as  highly  complicated 
forces  of  resistance.  In  the  present  epoch  the  ferment  of  great 
economic  development  is  bringing  about  and  will  bring  consider- 
able changes  in  the  general  content  of  liberty,  both  from  a  social 
and  strictly  legal  point  of  view.  Individual  man  attained  perhaps 
the  greatest  amount  of  formal  liberty  about  a  hundred  years  ago, 
but  the  swing  of  events  is  now  in  the  other  direction ;  and  if  the 
next  movement  shall  be  one  of  real  progress,  it  may  be  expected 
that  if  formal  liberty  is  reduced  again ^  to  a  kind  of  status, 
material  liberty  will  increase. 

It  has  been  pointed  out  repeatedly  in  these  studies  that  the 
course  of  evolution  does  not  follow  mathematical  straight  lines 
or  regular  curves.     Its  movement  is  rather  like  that  of  an  army 
which  presses  forward  against  the  points  of  least  resistance.     But 
no  description,  metaphor,  or  analogy  will  be  accurate  as  such. 
To  speak  of  the  last  device  which  is  commonly  resorted  to,  one 
may  see  with  JVj^aine,  the^mo^^ement  from  status  to  contract  as  a 
great  mechanical  movement  unfolding  through  some  sixteen  or 
seventeen  centuries  of  European  time ; .  and,  by  way  of  reaction, 
the  swing  of  events  in  the  reverse  direction  from  contract  whose 
height  was  realized  at  and  before  the  French  revolution,  back  to 
status.     How  much  or  how  little  there  may  be  of  profit  in  this 
cyclical  survey  of  events,  it  may  be  difficult  at  this  time  to  sa;;?^ ; 
but  we  may  be  sure  that  in  human  events  there  is  no  good  evidence 
of  identical  cycles,  although  we  may  readily  concede  to  legal  evo- 
lution a  growth  at  least  analogous  to  the  ascending  spiral  where 
the   corresponding   curves  have   various   interesting  general  re- 
semblances profitable  for  a  romantic  view  of  legal  evolution,  if 
p-^Upt  directly  available  for  the  exacting  demands  of  hard  science. 
I         Summarizing  what  we  believe  has  been  the  course  of  legal  and 
I     social  evolution,  but  disregarding  here  the  various  minor  oscil- 
I      lations  which  have  furnished  the  detail  of  history,  the  movement 
I      has  been  one  which  may  roughly  be  separated  into  three  great 
I      periods  —  the  physical,  the  metaphysical,  and  the  rational.     The 


PREFACE  XIX 

first  largely  covers  the  prehistoric  period ;  the  second  is  perhaps 
the  earliest  which  can  be  penetrated  by  any  of  the  methods  which 
may  be  usefully  employed  in  these  studies ;  and  the  last  represents 
the  centuries  in  which  the  law  and  its  institutions  have  been  re- 
garded as  human  instruments  and  controlled  by  human  agencies 
for  the  attainment  of  human  ends.  Each  upward  epoch  has  had 
transmitted  to  it  various  survivals  of  an  earlier  origin,  and  fre- 
quently in  the  long  march  of  evolution  there  have  been  baitings 
and  even  retrograde  movements,  which  obseryed  in  the  light  of 
decades  or  centuries  appear  to  deny  any  sort  of  constancy,  regu- 
larity, or  certainty  of  evolution  or  progress.  One  of  the  important 
tests  of  this  progress,  corresponding  to  the  stages  of  legal  evolu- 
tion, has  been  the  rising  influence  of  intellectual  factors  against 
the  coarser  materialistic  foundations  of  law,  the  rise  of  ethical 
and  rationalizing  factors  of  legal  development,  and  an  increase 
of  material  freedom  accomj>anied  by  differentiation  of  formal 
restraints  on  liberty. 


TABLE  OF  CONTENTS 

PART  I 

CRITERIA  OF  LEGAL   EVOLUTION 
AND  METHODS  OF  ITS  STUDY 

CHAPTER   I 

PAGE 

A  Classification  of  Social  Types  and  a  Catalogue  of  Peoples        3 
By  S.  R.  Steinmetz. 

CHAPTER   II 

The  Scientific  Method  of  Generalizing  from  Data  op  Legal 

Evolution 77 

By  Joseph  Mazzarella. 

CHAPTER   III 

Critique  of  Method  in  the  Study  of  the  Law*s  Evolution     153 
By  John  H.  Wigmore. 

PART  II 

FACTORS  OF  LEGAL  EVOLUTION 
IN  GENERAL 

CHAPTER  IV 

Factors  of  Legal  Evolution 163 

By  Edmond  Picard. 

CHAPTER  V 

Causes  for  the  Variation  of  Jural  Phenomena  in  General     182 
By  Carlo  Nardi-Greco. 

xxi 


XXll  TABLE    OF    CONTENTS 

A  — GEOPHYSICAL  FACTORS 
CHAPTER  VI 

PAGE 

Law  and  Geography 198 

By  H.  J.  Randall. 

CHAPTER  VII 

The  Influences  of  Geographic  Environment  on  Law,  State, 

AND  Society 215 

By  Ellen  Churchill  Semple. 

B  — ECONOMIC  FACTORS 


CHAPTER  VIII 

Economic  Foundations  of  Law 234 

By  Achille  Loria. 


C  — BIOLOGIC  FACTORS 

CHAPTER   IX 

Animal  Societies  and  Primitive  Human  Societies    .        •        .    267 
By  Adolfo  Posada. 

CHAPTER   X 

Natural  Origin  of  Property  among  Birds,  Beasts,  and  Fishes    288 
By  R.  Petrucci. 

CHAPTER  XI 

Rudimentary  Society  among  Boys 316 

By  John  Hemsley  Johnson. 

D  — RACIAL  FACTORS 

CHAPTER  XII 

Section  1.     Internal   and   External   Factors   of   Legal   De- 
velopment          ,       .     352 

By  Ludwig  Kuhlenbeck. 
Section  2.     The  Race  Factor  in  Legal  Evolution  .        .        .    355 

By  Houston  Stewart  Chamberlain. 


TABLE    OF    CONTENTS  XXlll 

CHAPTER  XIII 

PAOE 

Influence  of  National  Character  and  Historical  Environ- 
ment ON  THE  Development  of  the  Common  Law       .     369 
By  James  Bryce. 

E  — RELIGIOUS  FACTORS 

CHAPTER  XIV 

The  Influence  of  Religion  upon  Law  as  Illustrated  by  the 

Idea  op  Property 378 

By  Ludwig  Felix. 

F  — PSYCHOLOGIC  FACTORS 

CHAPTER  XV 

Sympathy  in  Group  and  Institutional  Survival      •        •        .    393 
By  Edward  D.  Page. 

G  — POLITICAL  FACTORS 

CHAPTER  XVI 

The  Constitutional  Factor  of  Legal  Development       •        .    417 
By  Emil  Reich. 

H  — SOCIAL  FACTORS  — PHYSICAL  FORGE 

CHAPTER  XVII 

Section  1.     The  Struggle  for  Law     .••...    440 

By  Rudolph  von  Jhering. 
Section  2.     The  Compromise  Nature  of  Law     .        .        •        ,    447 
By  Adolph  Merkel. 

chapter'  XVIII 

The  Use  of  Conflict 451 

By  Walter  Bagehot. 


4 


XXIV  TABLE    OF    CONTENTS 


CHAPTER   XIX 


Struggle  and  Adaptation '.        ,        .    473 

By  Michel-Angelo  Vaccaro. 

CHAPTER   XX 

Arbitrament  and  Guaranty  in  the  Origin  op  Law  •        .    485 

By  Gaston  Richard. 


PART  III 
PROCESS  OF  LEGAL  EVOLUTION 

CHAPTER  XXI 

Evolution  of  Social  Structures 501 

By  Lester  F.  Ward. 

CHAPTER   XXII 

Social  Integration  and  Differentiation  ....     514 

By  Herbert  Spencer. 

CHAPTER   XXIII 

Planetary  Theory  of  the  Law's  Evolution     ....     531 
By  John  H.  Wigmore. 

CHAPTER   XXIV 

Degenerative  Evolution 542 

By  Jean  Demoor,  Jean  Massart,  and  ifiniLE  Vandervelde. 

CHAPTER  XXV 

The  Evolution  of  Civil  Law -    571 

By  Raoul  de  la  Grasserie. 

CHAPTER  XXVI 

The  Perpetual  Evolution  of  Law 667 

By  Edmond  Picard. 

INDEX 679 


FORMATIVE   INFLUENCES  OF   LEGAL 
DEVELOPMENT 

PART  I 

CRITERIA    OF    LEGAL    EVOLUTION 

AND 

METHODS  OF  ITS  STUDY 

Chapter  I 

A  CLASSIFICATION  OF  SOCIAL  TYPES 
AND  A  CATALOGUE  OF  PEOPLES 

By  S.  R.  Steinmetz 

Chapter  II 

THE   SCIENTIFIC   METHOD   OF   GENERALIZING 

FROM   DATA   OF  LEGAL  EVOLUTION 

By  Joseph  Mazzarella 

Chapter  III 

CRITIQUE  OF  METHOD 

IN  THE  STUDY  OF   THE   LAW'S  EVOLUTION 

By  John  H.  Wigmore 


EVOLUTION  OF  LAW 

Volume  III 

FORMATIVE    INFLUENCES  OF   LEGAL 
DEVELOPMENT 

PART  I 

CRITERIA    OF    LEGAL    EVOLUTION 

AND 

METHODS  OF  ITS  STUDY 


Chapter  I 


A   CLASSIFICATION   OF    SOCIAL   TYPES 
AND   A  CATALOGUE   OF  PEOPLES  ^ 


I.  Sociology  —  Its  Defects  and 
Its  Need  of  Method. 

II.  The  Possibility  of  a  Classifi- 
cation in  Sociology. 

III.  The  Various  Systems  of  Clas- 
sification, 

IV.  The  Purpose  of  Sociological 
Classification. 


V.  Previous  Attempts  at  Socio- 
logical Classification. 
VI.  A  Suggested  Plan  of  Socio- 
logical Classification. 
VII.  Plan  of  a  Catalogue  of  All 
Known  Societies  and  Their 
Historic  Phases. 


I.   Sociology  —  Its  Defects  and  It?  Need  of  Method 

1.  The  primary  defect  which  strikes  a  critical  mind  in  even 
the  best  sociological  works,  with  but  few  exceptions,^  is  the  lack  of 
a  general  and  consistent  familiarity  with  the  entire  scope  of  the 
sociological  field.  One  rarely  gains  the  impression  of  an  author's 
competency  in  all  or  even  in  some  of  its  aspects.     It  is,  of  course, 

[^  By  S.  R.  Steinmetz.  The  original  appeared  as  an  essay  with  the 
title,  "Classification  des  Types  Sociaux"  in  "  L'Ann^e  Sociologique", 
III,  43-147  (1900),  Paris,  Felix  Mean.  The  translation  is  by  Miss  Dina 
Zolotkoff.  Miss  Zolotkoff  was  awarded  the  Jiuisprudence  Prize,  1915-16, 
in  Northwestern  University  School  of  Law,  for  work  in  Jurisprudence, 
including  the  presentation  of  this  translation.] 

'  As,  for  instance,  the  work  of  Spencer,  thanks  to  his  great  labor  on 
sociological  r6sum6s,  arranged  by  tables,  in  the  eight  foUo  volumes  of 

3 


4  CRITERIA   OP   LEGAL   EVOLUTION  [Part  I. 

natural  that  research  work,  when  specialized,  should  confine  itself 
to  a  limited  and  circumscribed  area ;  but  familiarity  with  the  re- 
maining parts  should  not  be  entirely  lacking.  As  for  more  general 
researches,  they  should  not  concern  themselves  with  one  locality 
more  than  with  another.  Those  who  are  engaged  in  such  re- 
searches ought  to  possess  a  somewhat  deeper  knowledge  of  all  the 
groups  of  peoples  and  of  all  the  types  of  culture.  I  believe  that 
everybody  will  recognize  with  me  the  fact,  that  many  an  author, 
though  otherwise  highly  esteemed  and  daring  in  his  speculations, 
produces  the  impression  of  being  wholly  unacquainted  with 
Arabian  culture,  or  the  culture  of  eastern  Asia,  or  the  highly 
original,  exceedingly  interesting  civilization  of  Central  America. 
Another  author  does  not  offer  convincing  proof  of  having  a  more 
or  less  thorough  acquaintance  with  any  primitive  or  barbaric  peo- 
ple. The  ethnologist  is  often  sadly  deficient  in  history.  And  just 
that  science  in  which  the  author  is  deficient  might  have  been  of 
the  greatest  service  to  him,  even  to  the  extent  of  changing  the 
entire  trend  of  his  reasoning. 

How  often  does  a  sociologist,  when  endeavoring  to  establish 
a  law  common  to  all  peoples,  draw  his  premises  from  only  one 
class  of  social  organizations,  brushing  aside  the  others,  with 
a  liberty  that  is  truly  naive !  Albeit  the  conquests  of  descrip- 
tive sociology  are  neither  new,  nor  infrequent  in  our  time,  nor 
unimportant,  still  it  is  quite  a  rare  occurrence  to  find  sociological 
observations  based  on  peoples  who  are  as  familiar  to  us  as  those 
of  the  states  of  Central  Soudan,  Indo-China,  Kashmir,  the  peoples 
of  Central  America,  those  of  Peru  before  the  conquest,  and  the 
important  empires  comprised  in  English-India.  Even  ancient 
Russia,  Japan,  and  Korea  are  nearly  always  ignored.^ 

Our  criticism  then  may  be  summarized  as  follows :  for  all  soci- 
ology bearing  either  on  humanity  as  a  whole,  or  on  barbarous  and 
cultivated  peoples  (which  sociology  is  not  to  be  confounded  with 
ethnology),  the  comparative  stage  has  not  yet  begun.  The  com- 
parative method  has  not  as  yet  become  a  factor  in  sociological 

** Descriptive  Sociology",  comprising  the  English,  the  French,  the  Israel- 
ites and  Phoenicians,  the  Mexicans,  etc.,  and  of  inferior  races,  the  Poly- 
nesians, the  Africans,  and  some  Asiatic  peoples ;  the  compilation  was 
made  by  Messrs.  Collier,  Duncan,  and  Scheppig.  The  little  use  that  has 
been  made  of  this  immense  collection  of  well-estabhshed  and  conveniently 
arranged  facts  is  a  grave  reproach  to  our  science. 

^  It  is  true  that  there  are  exceptions:  Stein  ("Die  Sociale  Frage  im 
Lichte  der  Philosophic",  1898)  had  the  intention  of  becoming  a  very 
laudable  exception,  but  did  not  succeed;  he  gives  some  ethnological 
resumes,  but  they  do  not  constitute  researches  and  are  not  at  all  original. 


Chap.  I.]  A  CLASSIFICATION   OF   SOCIAL  TYPES  5 

researches  worthy  of  that  name  and  laying  claim  to  something 
more  than  mere  rhetoric  or  gossip.     And,  I  feel  safe  in  saying, 
that  if  this  method  has  not  attained  greater  favor,  it  is  principally 
due  to  the  absence  of  a  proper  classification  of  peoples  according  / 
to  their  respective  social  states  and  the  degrees  of  their  respective/ 
civilizations. 

2.  The  reason  that  the  eye  of  the  sociologist  does  not  encompass 
all  the  categories  of  peoples  and  cultures  is  the  absence  of  such 
classification.  He  has  no  perception  of  all  the  peoples  because 
it  is  impossible  for  human  vision  to  master  the  chaos.  The  some- 
what philosophical  sociologist  realizes  but  vaguely  that  there  are 
peoples  besides  the  Greeks,  the  Romans,  and  the  contemporary 
Europeans  who  may  not  be  classed  as  savages.  Primitive  peoples 
are  beneath  his  consideration.  He  deems  it  incompatible  with 
the  dignity  of  philosophy  to  harness  its  superb  hypotheses  in  the 
service  of  so  humble  an  history.  It  would  be  hard  to  find  a  zoolo- 
gist who,  in  formulating  his  general  theories,  should  for  a  moment 
think  of  ignoring  the  inferior  forms  of  life,  or  neglect  making  a 
thorough  study  of  them.  But  what,  on  the  other  hand,  is  the 
ethnographic  and  ethnologic  erudition  of  even  our  most  renowned 
writers  of  general  sociology?  Instead  of  a  science  of  social  be- 
ginnings, we  are  offered  a  philosophy  of  law,  or  dithyrambs  such 
as  those  of  Mr.  Izoulet.  They  pretend  to  base  our  social  theory, 
and  consequently  our  social  technique,  upon  vague  clouds  which 
are  ever  swayed  by  the  changing  mood  of  philosophical  fancies. 

It  is  the  absence  of  a  universally  accepted  classification  in  our 
science  which  inevitably  leads  to  the  errors  above  enumerated, 
with  many  regrettable  consequences.  Recently  published  books 
on  suicide,  though  numerous  and  well-written,  neglect  for  the  most 
part  to  make  mention  of  any  of  the  peoples,  whether  barbarous 
or  primitive,  who  are  situated  beyond  the  borders  of  the  European 
sphere.^  I  have  called  attention  to  this  error  and  have  taken  the 
first  step  towards  its  correction ;  but  with  the  exception  of  Vier- 
kandt,  who  is  more  of  an  ethnologist,  and  Durkheim,^  none  of  the 
sociologists  have  availed  themselves  of  the  suggestion.  More- 
over, it  is  evident  that  our  entire  conception  of  suicide  must  change, 
when  it  is  taken  into  consideration  that  suicide  is  a  common  occur- 

1  See  my  criticism  on  the  popular  r6sum6  of  Dr.  Wynaendts  Francken, 
••De  Zelfrtioord"  (I^  Haye,  1899),  in  the  "Spectator",  Dec.  1899. 

'Compare  my  article  "Suicide  among  Primitive  Peoples",  in  the 
"American  Anthropologist",  1894,  and  those  of  Lasch  on  suicide  among 
primitive  and  barbarous  peoples,  in  the  "Globus",  1898  and  1899,  and 
in  "Zeitschrift  fiir  Social wissenschaft",  1899. 


6  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

rence  among  several  primitive  and  some  barbarous  peoples,  as 
for  instance,  the  Chinese  and  the  Hindus.  And  likewise  are  all 
speculations  on  the  evolution  of  the  feminine  sex,  and  its  prospec- 
tive emancipation,  deficient  by  reason  of  their  giving  insufficient 
attention  to  the  diversity  of  social  types.  The  explanation  of 
the  causes  of  present  conditions  has,  therefore,  been  most  super- 
ficial.^ It  would  not  have  been  at  all  difficult  to  ascertain  the  close 
relation  between  the  conditions  of  women  and  the  entire  moral, 
economic,  and  intellectual  situation.^  And  even  though  the  diver- 
sity of  peoples  and  the  abundance  of  social  forms  are  recognized 
in  the  abstract,  such  recognition,  always  because  of  the  same  de- 
fect, is  not  thorough  and  substantial  enough  to  be  always  present 
in  the  minds  of  sociologists,  and  to  influence  all  their  researches 
—  even  to  the  unconscious  formation  of  their  hypotheses. 

3.  This  grave  error  is  accompanied  by  another  —  an  inheritance 
of  our  speculative  past.  In  all  their  reasonings,  the  sociologists 
start  out  with  the  conception  of  a  humanity  which  is  one  and  in- 
divisible. Besides  ignoring  the  diversity  of  types  there  is  a  tend- 
ency to  deny  practically  their  existence.  They  are  not  suffi- 
ciently known  and  the  need  of  knowing  them  is  not  sufficiently 
felt.  This  tendency  to  ignore  is  fostered  by  the  dogma  of  the 
essential  unity  of  human  kind,  which  still  survives.  And  all 
these  prejudices  are  nurtured  by  the  mere  habit  of  abstract  reason- 
ing, and  the  aversion  to  practical,  though  more  exacting  research, 
based  upon  historical  and  ethnographical  materials.  The  beaten 
track  of  reasoning  on  human  qualities  and  on  society  in  general 
makes  it  difficult  to  form  any  different  conception.  Our  scientific 
ancestors  were  philosophers  who  knew  man  but  a  short  time,  and 
jurists  who  conceived  one  law  for  all  peoples,  deriving  it  from  the 
principles  of  Roman  law.  Small  wonder,  then,  that  in  general 
sociology,  they  still  cling 'to  those  habits  of  mind,  which  have  the 
advantage  of  making  work  very  simple.  By  a  few  deductions, 
a  whole  series  of  laws  may  be  construed  within  a  few  hours.' 
That  is  very  amusing,  and  tires  no  one  but  the  reader. 

1  I  permit  myself  to  refer  to  my  essay,  "  H.  et  Feminisme  ",  1899,  Leiden, 
where  I  have  attempted  to  elaborate  upon  the  problem  a  little  more. . 

2  See  researches  by  Grosse,  "Die  Formen  der  Familie  und  die  Formen 
der  Wirtschaft"  (1897),  and  my  criticism  in  the  "Revue  international  de 
Sociologie",  1897,  p.  923-926. 

3  As  is  the  case  in  books  such  as  Gumplowicz  ("Grundriss  der  Socio- 
logie", 1855),  or  R.  Worms,  "Organisme  et  Societe"  (1890).  Compare 
my  criticism  on  organism  in  "Die  organische  Socialphilosophie "  in 
*'Zeitschrift  fiir  Socialwissenschaft",  1898,  and  Giddings,  "Principles  of 
Sociology",  p.  62. 


Chap.  I.]  A  CLASSIFICATION   OF  SOCIAL  TYPES  7 

For  the  purpose  of  explaining  man's  conduct,  sociologists 
started  out  by  imagining  him  totally  different  from  what  he  is. 
He  was  depicted  as  always  intelligent,  always  egoistic,  always 
clear- visioned  where  his  own  interests  were  concerned,  always 
alert  —  when  as  a  matter  of  fact,  he  is  almost  always  lazy,  stupid, 
negligent,  and  at  times  rather  good-natured.  It  was  natural, 
after  such  a  beginning,  to  finish  by  not  understanding  anything 
of  his  history.  The  most  serious  error  committed  was  to  suppose 
that  all  men  were  nearly  equal  —  an  error  for  which  socialism  came 
as  the  serious  punishment.  The  means  for  understanding  and 
appreciating  the  function  of  capitalists  and  industrial  leaders 
was  sidetracked.^  The  second  error,  analogous  to  the  first,  was 
the  neglect  of  the  enormous  differences  distinguishing  diverse 
economic  periods  in  classic  economy.  Humanity  was  regarded 
only  from  the  vantage  of  the  nineteenth  century.  As  an  instance, 
the  fact  may  be  cited,  that  only  one  single  way  of  determining 
value  was  thought  of.  It  should  have  been  known,  however, 
that  in  the  cities  of  the  Middle  Ages,  values  were  determined  in 
an  entirely  different  manner  —  not  by  the  balancing  of  supply 
and  demand,  but  by  a  rational  estimation.^  And  how  is  the  theory 
of  the  cost  price  of  production  to  be  determined  ?  Different  pro- 
ducers sell  at  altogether  different  prices ;  for  instance,  the  primi- 
tive, such  as  is  still  found  in  a  large  part  of  the  world,  sells  things 
which  he  has  produced  at  the  cost  of  much  labor  for  mere  trinkets, 
when  his  fancy  for  such  trinkets  (and  that  is  a  known  trait  of  his) 
has  been  aroused.^  It  is  true  that  historical  economy  has  wrought 
a  great  change ;  but  it  seems  that  the  doctrine  is  still  being  built 
up  by  deductive  generalizations,  and  that  the  lessons  learned 
from  history  figure  in  it  only  as  ornaments.  Historical  and 
comparative  induction  does  not  yet  occupy  the  important  posi- 
tion it  is  entitled  to  in  theoretical  economy.  It  is,  rather,  a  study 
apart.  The  diverse  social  types  are  never  taken  into  considera- 
tion ;   they  are  not  regarded  as  important. 

This  defect  in  method  is  probably  fostered  by  conservative 

^  "Die  Dispositiven  Arbeiter"  by  Prof.  J.  Wolf,  intermediaries  be- 
tween inventors,  the  creators,  and  the  manual  executives;  also  his 
"Socialismus  und  Kapitalistische  Gesellschaftsordnung"  (1893),  pp.  399 
seq.  Wolf  showed  more  appreciation  for  the  promoters  than  the  other 
economists,  but  still  not  enough.  Cf.  also  Mallock,  "Labour  and  the 
Popular  Welfare",  1892,  and  "Social  Aristocracy"  (1897). 

2  Cunningham,  "Growth  of  English  Industry  and  Commerce",  I 
(1898),  pp.  457  seq.;  Fruin,  "Verspreide  Geschriften",  I  (1899);  "Een 
HoUandsche  Stad  in  de  Middeleeuw",  pp.  102,  104,  107;  Gtuw,  "En- 
glische  Wirtschaftsent\\ickelung  im  Mittelalter"  (1898),  pp.  23,  28,  29. 

»  Bucher,  "Die  Wirtschaft  der  Naturvolker"  (1898),  p.  30. 


8  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

tendencies  which  fail  to  recognize  that  our  social  and  juridical 
forms  are  neither  eternal  and  immutable,  nor  even  the  happy 
and  lasting  results  of  a  straight-line  development ;  but  are  merely 
the  traits  appertaining  to  a  particular  social  type,  surrounded  by 
others.  It  is  a  remnant  of  pre-Copernican  philosophy.  From 
such  method  one  fails  to  see  that  we  are  changing,  and  that  our 
European  culture  is  nothing  but  a  particular  phenomenon  much 
like  other  phenomena.  All  that  is  admitted  is  the  straight-line 
development,  terminating  in  our  social  order.  It  is  thus  that 
the  economic  history  of  Europe  was  construed  by  the  eminent 
professor  of  Leipzig,  for  whom  the  Greek  and  Roman  world  was 
in  no  way  superior  to  the  "  geschlossene  Hauswirtschaf t "  ("Oiken- 
wirtschaft  "  of  Rodbertus)  which  was  followed  by  the  economy  of 
the  towns  of  the  Middle  Ages,  and  the  national  economy  of  our 
own  times.^  This  simple  theory  is  being  asserted  in  the  face  of  a 
mass  of  well-known  facts  of  Greek  and  Roman  economy  .^  This 
is  due  to  the  narrow  conception  of  evolution  as  a  straight  line  — 
a  narrow  and  limited  conception  indeed,  which  has  even  influenced 
so  well-informed  and  brilliant  a  man  as  Mr.  Biicher  to  build  his 
theories  accordingly.  The  diverse  social  types  which  do  not  fit 
into  the  straight-line  development  are  ignored.  From  a  purely 
scientific  point  of  view,  the  larger  conception  seems  to  be  the  most 
attractive.  I  feel  sure  that  the  influence  of  practical  tendencies 
is  at  play  here  in  the  most  vexatious  manner.  It  is  not  a  causal 
explanation  of  the  phenomena  of  social  life  that  is  looked  for,  but 
rather  a  justification  of  our  social  state.  It  is  the  historical  (alias 
ethical)  school  which  is  being  urged  on  by  this  extra-scientific 
need.^ 

\A'  The  same  defect  —  of  ignoring  the  classification  of  peoples 
—  is  found  also  in  ethnology,^  and  that  is  even  more  surprising, 
for  that  science  is  altogether  devoid  of  any  direct,  practical  tend- 
ency. In  ethnology,  the  error  is  of  a  more  intellectual  nature. 
In  ethnology,  the  mind  does  not  work  by  classifications  either, 

1  Biicher,  "Die  Entstehung  der  Volkswirtschaft",  1898  (2d  ed.),  p.  65. 

2  Cf.  Mayer,  "Die  Wirtschaftliche  Entwickelung  des  Alterthums" 
(1895);  Cunningham,  "Western  Civilization  in  its  Economic  Aspects" 
(1898);  Beloch,  "Griechische  Geschichte";  Brooks  Adams,  "La  Loi  de 
la  Civilisation  et  de  la  Decadence"  (1899),  p.  50;  Beloch,  "Die  Gross- 
Industrie  im  Altertum"  in  "Zeitschrift  fiir  Socialwissenschaf t "  (1899), 
pp.  18  seq. 

3  Cf.  Bougie,  "Les  sciences  sociales  en  allemagne "  (1896),  pp.  75,  81; 
J.  Wolf,  "  Socialismus  und  Kapitalistische  Gesellschaf tsordnung "  (1893), 
pp.  118  seq. 

4  As  for  example  in  the  philosophy  of  law.  Cf.  the  introduction  to 
my  "Erste  Entwickelung  der  Strafe",  1894,  I,  introd.,  95,  sec.  1. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  9 

and  it  is  only  very  recently  that  any  other  tendency  has  made 
its  appearance.^  I  shall  note  only  one  example,  which  is  typi- 
cally significant  because  of  the  name  and  scientific  worth  of  the 
writer,  the  w^ll-known  author  of  the  "History  of  Human  ]\Iar- 
riage."  He  entirely  ignores  any  classification,  but  confounds  in 
the  course  of  his  argument  primitive  and  civilized  peoples  of 
various  types. 

Ethnologists  know  very  well  that  the  peoples  among  whom  they 
trace  the  evolution  of  various  institutions  do  not  all  belong  to  the 
same  type.^  They  even  know  that  the  existence  of  any  particular 
social  trait  must  lead  to  far-reaching  consequences,  and  must 
influence  more  or.  less  all  other  institutions.  They  know  this, 
but  they  do  not  utilize  their  knowledge.  That  is  because  there 
is  no  classification  of  peoples,  and  because  ethnologists  do  not 
keenly  feel  the  need  of  a  classification.  To  them,  all  peoples  are 
of  the  same  type ;  and  yet  no  one  knows  better  than  they  do  that 
reality  is  not  in  aCcord  with  this  simple  conception. 

5.  In  ethnology  we  find  again  a  partiality  for  the  one-straight- 
line  evolution,  which  hitherto  was  the  valued  possession  of  the 
economists;  we  find  it  here  in  full  bloom.  If  indeed,  as  must 
be  admitted,  the  ethnologists  (with  but  few  exceptions)  are  evolu- 
tionists, their  conception  of  the  evolution  of  humanity  is  much 
too  simple.  According  to  their  conception,  every  social  condition, 
however  centrifugal,  must  represent  a  rung  of  a  single  ladder; 
and,  in  conformity  to  that  tendency,  every  phenomenon  discovered, 
however  rare  it  may  be,  is  generalized  as  some  stage  in  the  develop- 
ment which  every  race,  every  people,  has  traversed  in  the  past  or 
must  traverse  in  the  future.^  For  them,  it  is  always  the  same 
monotonous  road.  They  are,  however,  obliged  to  recognize 
several  too  evident  deviations  —  for  example,  the  absence  of  the 
nomadic  state  in  the  history  of  the  more  civilized  peoples  of 

'I  accuse  myself.  In  my  "Strafe",  as  well  as  in  my  "Endokanni- 
balisraus"  (1896),  are  to  be  found  only  insufficient  traces  of  the  classi- 
fication of  peoples,  although  I  have  at  least  limited  all  my  researches  to 
primitives  alone  and  have  not  confounded  them  with  superior  barba- 
rians, as  was  and  still  is  the  case  with  the  best  ethnological  publications. 
My  "Lohn  und  Strafe",  in  "Jenseits  der  Naturvolker "  (1897),  is  in  this 
respect  much  improved. 

2  Proof  of  the  scant  attention  given  to  these  questions  is  furnished  by 
HUdehrnnd,  an  economist,  it  is  true,  who  in  his  "Problem  der  allgemeinen 
Entwickelungsgeschichte  des  Rechts  und  der  Sitte"  (1894),  p.  25,  re- 
gards the  New  Zealanders,  who  are  quite  well  known,  as  hunters.  Cf. 
my  criticism  on  that  book  in  "Museum",  Dec.  1894,  pp.  368  seq.  Later 
he  corrected  this  error,  which  is  repeated  on  page  13  of  his  very  important 
work  "Recht  und  Sitte  auf  den  verschiedenen  Wirtschaf tskulturstuf en " 
(1896),  p.  190. 

'  CJ.  RatzeVs  criticism,  "Autobiographie",  II,  p.  704. 


10  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

Central  America  and  Peru ;   but  that  in  no  way  changes  the  gen- 
eral and  deep-rooted  tendency  to  ignore  classification. 

This  tendency  begets  another:  a  predisposition  of  the  mind 
to  regard  those  earlier  institutions  which  do  not  conform  to  those 
prevalent  among  us,  as  the  initial  forms  of  evolution.  The  gen- 
eral assumption  of  early  communal  ownership,  and  the  univer- 
sality of  mother  rule  before  father  rule  are  examples  of  this  tend- 
ency.^ They  avoid  admitting  what  seems  most  natural,  that 
under  the  influence  of  conditions  differing  by  their  quantity,  qual- 
ity, and  order  of  succession,  the  different  groups  of  races  could  not 
have  accomplished  the  same  series  of  changes.  These  differences, 
always  multiplying,  must  have  produced  types  of  evolution,  and 
as  a  result,  diverse  types  of  culture,  that  will  probably  never 
resemble  each  other  —  which,  by  the  way,  is  a  consolation. 
******* 

6.  The  respective  situation  of  the  different  peoples  in  classifi- 
cation is  not  clearly  determined  by  these  writers ;  and  yet  the 
solution  of  very  important  problems  depends  upon  the  situation. 
For  instance,  Grosse  maintains  that  hunters  and  fishers  preceded 
agriculturists,  and  from  this  premise  he  deduces  that  the  form  of 
family  life  found  among  the  former  is  more  archaic  than  that 
among  the  latter.-  This  reasoning  does  not,  however,  convince 
Kohler.^  The  first  error  which  Grosse  commits  is  that  of  treating 
as  a  genealogical  sequence  that  which  he  holds  forth  as  a  classifica- 
tion of  resemblance  pure  and  simple.  The  second  is  that  he  ignores 
the  remnants  which  pass  from  one  stage  of  civilization  into  the 
next.  If  his  mind  had  been  more  deeply  impressed  by  the  prin- 
ciples of  classification,  he  would  have  avoided  these  errors.^  If 
the  idea  of  the  diversity  of  types  of  culture  were  foremost  in  the 
minds  of  the  investigators,  it  would  change  the  very  character  of 
ethnological  researches,  and  would  make  them  more  profound, 
and  more  fertile  in  safe  discoveries. 

^*  *****  * 

7.  Since  even  in  the  best  works  on  comparative  sociology  and 
ethnology  (with  but  rare  exceptions)  there  has  been  no  attempt 

1  Cf.  my  essay  "Die  neuern  Forschungen  zur  Geschichte  der  Mensch- 
lichen  Familie"  in  "  Zeitschrift  fiir  Socialwissenschaft "  (1890),  pp.  685 seq.j 
825-826. 

2  Grosse,  "Die  Formen  der  Wirtschaft  und  die  Formen  der  Familie" 
(1896),  pp.  29,  42,  45,  48,  52,  '64,  133,  164-5. 

3  Kohler,  "Zur  Urgeschichte  der  Ehe"  (1898),  p.  11. 

*  Cf.  my  "Die  neuern  Forschungen  zur  Geschichte  der  MenschUchen 
Familie"  in  "Zeitschrift  fiir  Socialwissenschaft",  1899,  pp.  685  seq., 
809  seq. 


Chap.  I.]  A   CLASSIFICATION   OP  SOCIAL  TYPES  11 

to  make  as  complete  an  induction  as  possible,  the  point  where 
classes  can  be  defined  with  precision  cannot  be  reached.  A  well- 
made  induction  and  a  precise  definition  are  complementary  to 
each  other.  For  instance,  if  one  wishes  to  know  what  form  of 
religion  or  family  life  was  found  among  the  inferior  hunters,  two 
preliminary  conditions  must  be  fulfilled.  The  characteristic 
traits  of  the  inferior  hunters  must  be  defined  with  precision ;  the 
limits  being  fixed  by  those  of  the  lower  class  farmers  and  fisher- 
men ;  and  he  must  make  as  complete  a  collection  as  possible  of 
all  well-described  examples  of  peoples  who  come  within  those 
limits.     In  this  manner  only  can  the  principal  inquiry  be  pursued. 

If  the  need  of  an  experimentum  crucis,  which  is  recommended 
by  all  logicians  and  neglected  by  all  sociologists,  were  more  univer- 
sally felt,  one  would  feel  himself  obliged  to  use  the  inductive  method. 
It  is  a  well-known  fact  that  but  few  of  the  sociological  arguments 
are  able  to  carry  conviction  to  an  analytical  mind ;  the  reason 
lies,  first,  in  the  insufficient  use  of  the  inductive  method  and  the 
too  frequent  use  of  illustrative  reasoning;  and  secondly,  in  the 
fact  that  an  experimentum  crucis  is  almost  regularly  omitted. 
When  sociologists  have  brought  forward  several  illustrations  in 
support  of  their  hypotheses,  they  are  entirely  content;  they  do 
not  try  to  extend  their  researches  to  the  entire  class  in  question ; 
they  do  not  look  for  objections ;  they  do  not  even  look  for  apparent 
exceptions  to  the  given  rule — consequently,  they  never  convince  us. 

A  striking  example  of  the  grave  defects  which  have  just  been 
mentioned  is  the  otherwise  interesting  and  suggestive  book  of 
Brooks  Adams,  "The  Law  of  Civilization  and  of  Decadence." 
Adams  does  not  ask  himself  whether  the  law  proposed  by  him 
would  hold  good  for  the  entire  class  of  peoples  which  is  the  object 
of  his  study.  He  attempts  to  verify  it  only  among  the  Romans, 
Byzantines,  French,  and  English.  He  does  not  attempt  to  ex- 
plain decisive  facts  in  any  other  manner;  he  does  not  mention 
the  other  hypotheses  which  have  been  advanced,  and  does  not 
try  to  account  for  them.  Although  the  book  made  a  deep  impres- 
sion upon  me,  I  am  sure  that  no  critical  reader  would  be  convinced 
by  the  arguments.  You  are  puzzled  by  such  works;  you  feel 
perplexed.  You  begin  by  saying :  it  is  possible  that  this  is  true. 
You  end  by  saying :  it  is  very  possible  that  it  is  otherwise.  All 
works  on  sociology  leave  the  same  impression.  One  might  argue 
that  the  enormous  complexity  of  facts  is  the  cause  of  it.  But  I 
answer :  why  do  students  in  natural  sciences  take  the  trouble  to 
master  the  relatively  simple  phenomena,  while  we  slacken  our 


12  CRITERIA   OF    LEGAL   EVOLUTION  [Part  I. 

efforts  on  this  point  in  the  face  of  such  complex  problems?  No, 
the  error  lies  in  our  method ;  the  fault  is  ours. 

Here  is  an  illustration  of  this  frequently  inadequate  knowledge 
of  the  sociologists,  and  of  their  boldness  in  deriving  far-reaching 
conclusions  therefrom.  Mr.  Adams  (I  blame  him,  because  his 
merits  are  many)  tries  to  make  us  believe  that  woman  was  always 
more  esteemed  by  the  peoples  among  whom  she  was  bought, 
than  by  us,  and  that  her  social  standing  was  very  high  during  the 
Middle  Ages.  He  seems  to  take  the  poetic  cult  of  women  as  a 
social  reality.  His  first  assertion  is  contradicted  by  all  ethnology ; 
his  second  by  all  history.^  Adams  made  these  paradoxical  state- 
ments because  his  theory  demanded  it  —  but  he  does  not  prove 
them.  In  like  manner  one  often  meets  the  gratuitous  assertion 
that  the  nomads  invented  slavery  by  the  domesticating  of  animals, 
and  that  hunting  and  fishing  peoples  did  not  have  it.  Nieboer  ^ 
has  shown  by  a  careful  induction  that  these  two  hypotheses  lack 
sufficient  foundation. 

There  is  only  one  way  of  remedying  this  situation  in  sociology : 
the  exigencies  of  system  must  be  raised  much  higher,  so  that  the 
work  of  the  dilettante  may  be  readily  distinguished  from  that  of 
the  true  scholar.  And  the  first  step  toward  the  method  of  which 
we  stand  so  greatly  in  need,  and  for  which  I  am  convinced  our 
science  is  ripe,  is  the  introduction  of  classification. 


II.    The  Possibility  of  a  Classification  in  Sociology 

But  the  need  of  a  reform  does  not  suffice  to  bring  one  about. 
It  must  be  feasible.  For  us,  the  question  comes  down  to  this: 
is  there  classifiable  matter  in  sociology  ? 

1.  Let  us  not  deceive  ourselves :  our  case  is  entirely  different 
from  that  of  zoology  or  botany.     There,  the  innumerable  masses 

1  V.  Spencer,  "Sociology",  I,  p.  716;  Grosse,  "Die  Formen  der  Familie 
und  die  Formen  der  Wirtschaft"  (1896),  pp.  181,  221,  223,  225;  Wester- 
marck,  "History  of  Human  Marriage"  (1891),  p.  402;  Biicher,  "Die 
Frauenfrage  im  Mittelalter"  (1882),  pp.  8,  17,  33,  45,  48,  54  ;  K.  Weinhold, 
"Die  deutschen  Frauen  im  Mittelalter"  (1882),  I,  pp.  238,  239,  248,  253, 
256,  260-261,  280,  320-326;  II,  pp.  6-13,  28;  Paul,  "Grundriss  der 
germanischen  Philologie"  (1898),  III,  pp.  418,  419,  423;  Rudeck, 
"Geschichte  der  offentlichen  Sittlichkeit  in  Deutsehland "  (1897),  p.  171 ; 
Schultz,  "Deutsches  Leben  im  14ten  und  15ten  Jahrhundert"  (1892), 
pp.  254,  255,  257;  Boos,  "Geschichte  der  rheinischen  Stadtkultur", 
III  (1899),  pp.  45,  46;  Lamprecht, ''Deutsche  Geschichte",  II,  pp.  53, 
177,  179;  III,  pp.  101,  182;  J.  Grimm,  "Deutsche  Rechtsalterthumer " 
(1881),  pp.  403,  404,  407,  421,  447,  449,  450. 

2  "  Slavery  as  an  Industrial  System  ",  1900. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  13 

of  individuals  form  natural  groups,  in  which  the  individuals  re- 
semble one  another  to  such  an  extent  that  we  usually  neglect 
their  individuality  and  consider  only  the  species,  which  alone  is 
declared  to  be  really  existing.  ^Moreover,  the  species  are  so 
numerous  (in  the  middle  of  our  century,  150,000  are  already 
known)  and  their  principal  groupings  are  on  the  whole  so  evident,^ 
that  Aristotle  had  already  distinguished  them  in  a  very  rational 
way,  and  nobody  can  fail  to  recognize  their  principal  traits.  How 
different  all  that  is  in  sociology  !  There  are  by  far  fewer  individual 
societies  than  there  are  species,  or  even  .kinds,  in  zoology  and  in 
botany.  Social  individualities  are,  moreover,  much  less  strictly 
defined ;  so  much  so,  that  it  requires  deep,  thorough  study  in 
order  to  properly  distinguish  them.  It  is  impossible,  at  least 
as  far  as  the  most  advanced  among  them  is  concerned,  to  survey 
them  all  at  once ;  one  does  not  get  to  know  them  or  differen- 
tiate between  them  except  on  paper.  Until  a  few  years  ago, 
there  were  only  very  few  peoples  who  were  clearly  distinguished 
—  too  few  to  feel  the  need  of  grouping  them  ;  and  their  individual 
traits  were  too  well  known  to  believe  in  the  possibility  of  any 
grouping  in  which  each  individual  people  would  not  form  a  group 
of  itself.  The  Jews,  the  Greeks,  and  the  Romans  were  individuals 
of  which  the  minutest  details  were  studied ;  one  would  disdain 
ranging  them  in  one  class,  for  that  would  imply  an  admission  of 
their  resemblance  with  other  less  esteemed  peoples.  As  long  as 
one  saw  everywhere  only  heroes,  geniuses,  and  exceptional  facts, 
the  very  idea  of  classifying  that  which  ought  to  be  absolutely 
individual  was  absurd.^  The  first  condition,  then,  was  to  know 
many  peoples,  too  different  from  us,  so  that  no  one  could  overlook 
those  differences ;  too  numerous,  so  that  no  one  could  help  feeling 
the  need  of  grouping  them.  Moreover,  it  would  be  necessary 
to  know  them  well  enough  to  see  the  apparent  similarities. 

Another  difficulty  was  the  abundance  of  individual  traits  which 
the  peoples  presented,  traits  which  have  since  become  sufficiently 
well  known  to  tempt  one  to  classify  them,  and  one  feels  that  such 
a  classification  might  be  undertaken  with  success.  Besides,  one 
only  considered  the  individual  characteristics,  and  failed  to  recog- 
nize the  enormous  importance  of  general  characteristics.  It  is 
only  after  political  economy,  comparative  ethnology,  and  anthropo- 
sociology  have  demonstrated  the  preponderant  influence  of  mode 

'  Not  too  much  so:  compare  for  instance,  L.  Agassiz,  "De  TespSce  et 
de  la  classification  en  zoologie"  (1869),  pp.  119-135. 

'  Bourdeau,  "L'Histoire  et  les  historiens"  (1888),  pp.  13  seg.,  110  seq. 


14  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

of  life,  and  of  the  social  and  anthropological  combinations  of 
a  given  people  upon  all  social  manifestations,  that  the  point  of 
view  has  changed;  and  it  is  constantly  changing  more.^  Here, 
analytical  science  must  precede  and  prepare  the  way  for  classi- 
fication. It  is  the  opposite  course  to  that  which  natural  history 
followed ;  for  there,  classification  preceded  by  far  the  well-estab- 
lished morphology  and  physiology. 

2.  A  circumstance  which  does  not  facilitate  the  distinction  be- 
tween social  types,  and  the  diverse  periods  of  historic  peoples,  is  the 
well-known  and  almost  universal  fact  that  these  types  have  not 
been  defined  in  a  striking  way,  but  on  the  contrary,  the  institutions 
of  one  type  continually  overlap  those  of  another.  There  have  never 
been  abrupt  changes  between  two  periods  or  two  types  of  civiliza- 
tion, and  one  finds  less  and  less  of  them  in  a  measure  as  our  his- 
torical knowledge  increases.  That  which  seemed  to  be  an  abrupt 
change  has  that  appearance  only  for  those  who  adhere  to  schematic 
summaries;  but  with  each  advance  in  our  knowledge,  we  see 
that  imaginary  dividing  space  resolve  itself  into  a  series  of  imper- 
ceptible transitions.  What  trouble  they  formerly  took  to  ex- 
plain in  different  ways,  each  more  ingenious  than  the  next,  the 
acceptance  of  the  Roman  law  at  the  end  of  the  Middle  Ages.  That 
which  made  the  difficulty  was  that  this  introduction  of  a  foreign 
law  system  was  conceived  of  as  a  rapid,  entire  event.  They  sup- 
posed that  nothing  was  left  over  from  the  past,  that  it  was  an 
actual,  visible  change.  Now  that  we  know  of  these  many  and 
slow  transitions,  the  fact  has  nothing  miraculous  in  it.  We  know 
that  there  are  in  southern  Europe  a  thousand  remnants  of  Roman 
law,  that  ecclesiastical  law  has  left  numerous  traces,  that  scholarly 
lawyers  prepared  the  transformation  by  small,  imperceptible 
advances,  so  that  nowhere  has  the  ancient,  popular  law  entirely 
disappeared,  but  on  the  contrary,  more  traces  of  it  have  remained 
than  would  be  supposed.  Thanks  to  the  labors  of  De  Tocque- 
ville,  Taine,  and  others,  the  same  change  has  come  about  in  our 
conception  of  the  social  and  economic  revolution  which  followed 
the  French  Revolution  of  1789.  Even  here  the  stream  conti- 
nuity was  much  less  drained  than  was  imagined.  In  Central 
America,  the  same  phenomenon  presents  itself  again  to  us :   the 

^  The  materialistic  conception  of  history,  once  relieved  of  its  exclusive- 
ness,  seems  to  me  to  include  a  great  deal  of  truth,  the  same  way  as  an- 
throposociology,  which  does  not  deserve  the  attacks  by  Loria  ("Social 
Anthropology"  in  "The  American  Anthropologist",  April,  1899),  nor 
those  by  Woltman  ("Die  Darwinische  Theorieund  der  Socialismus",  1899), 
or  by  Jentsch  ("Socialauslese",  1898):  yet  those  promising  researches 
are  still  in  their  first  youth. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  15 

brutal  conquest  of  Mexico  and  Peru  by  the  Spaniards  did  not 
destroy  the  original  civilization ;  it  did  not  exterminate  the  In- 
dians. But  there  remained  numerous  traces  of  them  which  make 
of  that  part  of  America  a  country  very  different  from  Spain.  In 
short,  everything  shows  that  in  sociology,  as  in  geology,  the 
theory  of  sudden  revolutions  has  been  renounced  for  that  of  slow 
and  gradual  evolution  due  to  the  action  of  causes  which  are  always 
the  same  and  which  work  without  interruption. 

The  difficulty  which  classification  encounters  by  reason  of 
that  particularity,  is  still  more  aggravated  by  the  fact  that  one 
and  the  same  period  is  not  the  same  in  all  its  manifestations  for 
two  neighboring  peoples.  For  instance,  the  Middle  Ages,  that  is 
to  say,  the  period  which  extends  from  the  last  of  the  Merovingians 
up  to  the  fifteenth  century,  is  marked  by  entirely  different  char- 
acteristics in  Germany,  France,  Italy,  and  England.  The  power 
of  the  sovereign  and  that  of  the  nobles,  the  position  of  free  men 
and  the  significance  of  cities  and  corporations,  all  differed  in  these 
four  countries  during  the  Middle  Ages.^  In  zoology,  it  is  true,  we 
also  see  very  striking  disparities.  The  whales,  differing  from  all 
other  mammifers,  live  in  the  sea ;  the  length  of  life  is  not  the  same 
in  any  group  of  higher  animals.^  But  there  is  always  this  differ- 
ence with  sociology :  in  natural  history,  there  is  no  trouble  in 
showing  that  the  individuals  of  a  species  are  altogether  similar, 
and  in  sociology,  on  the  contrary,  one  sees  immediately  and  clearly 
the  differences  between  societies  which  would  be  the  most  likely 
to  enter  into  the  same  class. 

Are  there  not  indeed  enough  difficulties  in  our  way?  Ought 
we,  then,  give  up  our  plan  ?     I  do  not  think  so. 

******* 

We  have  not  been  able  to  find  an  argument  to  convince  us  of 
the  impossibility  of  classifying  peoples  and  social  conditions. 
We  have  shown  the  usefulness  of  classification.  Now  we  must 
try  to  introduce  it. 

In  order  not  to  make  avoidable  mistakes,  let  us  consult  freely 
the  experience  of  other  classifiable  sciences,  and  let  us  listen  to 
the  lesspns  of  general  logic. 

>  Cf.  the  remarks  of  Durkheim,  *'  Les  rSglea  de  la  m^thod'e  sociologi- 
que"  (1895),  pp.  108,  109. 

2  Agassiz,  loc.  cit.,  p.  141 :  "there  is  little  uniformity  in  the  representa- 
tives of  different  classes,  and  that  within  certain  limits." 


16  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

III.    The  Various  Systems  of  Classification 

Durand  (de  Gros)  is  undoubtedly  the  logician  who  has  treated 
the  general  problem  of  classification  most  exhaustively.  He 
distinguishes  four  diverse  orders  which  might  be  made  the  basis 
of  a  classification  :  the  class  of  generality  or  of  similarity,  the  class 
of  composition  or  collectivity,  the  class  of  hierarchy,  and  the  class 
of  genealogy  and  evolution.^  The  first  ranges  the  objects  accord- 
ing to  the  proportion  of  common  characteristics  which  unite  them ; 
here  the  lowest  group  combines  the  units  which  have  the  greatest 
number  of  characteristics  in  common,  and  consequently  is  the  most 
restricted  in  number.  "  The  classifications  in  botany  and  zoology 
pass  as  typical  applications  of  the  taxonomic  order  of  generality.  "^ 
In  our  times,  however,  the  genetic  order  has  to  a  large  extent  con- 
quered that  ground.  The  class  of  composition  or  collectivity  is 
based  upon  the  relation  of  the  whole  to  the  part  and  the  part  to  the 
whole.  Mr.  Durand  sees  the  most  perfect  example  of  this  class  in 
our  system  of  numeration.^  "  The  hierarchic  series  is  nothing  but  a 
progressive  series  of  grades. "  ^  The  best  known  example  of  this 
class  is  the  army.  Finally,  the  genealogical  class  ranges  objects 
according  to  their  order  of  kinship,  in  ascending,  in  descending, 
in  collaterals.  The  prototype  of  this  class  is  natural  relationship ; 
the  ideal  model  of  all  the  applications  of  this  order  is  the  genea- 
logical order.  The  most  interesting  applications  are  found  today 
in  the  systems  of  relationship  of  languages,  of  societies,  of  human 
races,  and  especially  in  those  of  botanical  and  zoological  species. 

It  is  superfluous  to  show  that  for  our  purpose,  there  can  be  no 
question  of  the  classes  of  composition  and  hierarchy.  Both  of 
them  find  many  an  application  in  the  domain  of  sociology,  but  the 
classification  of  peoples  and  types  of  culture  has  nothing  to  do 
with  them. 

Again  the  kinship  of  different  peoples,  their  origins,  their 
migrations  and  their  intermingling,  the  favorite  theme  of  many 
an  ethnographer,  are  certainly  of  great  interest  for  the  sociologist ; 
but  nothing  of  all  that  has  any  bearing  upon  the  classification  of 
the  diverse  civilizations. 


The   only   class   which    remains    for    us    to    consider    is    the 
class   of   similarity.     Later  we   shall   look   more   closely  to  see 

^  Durand   {de  Gros),   "Apergus  de  taxonomie   g^nerale"    (1899),   pp. 
5  seq. 

2  Durand,  loc.  cit.,  p.  18.  ^  Lqc.  cit.,  p.  37.  *  Loc.  cit.,  p.  52. 


Chap.  L]  A   CLASSIFICATION   OF  SOCIAL  TYPES  17 

whether  the  genetic  class  cannot  modify  the  class  of  similarity 
in  sociology,  as  was  the  case  in  natural  history  according  to 
Darwin.^ 

Before  examining  the  various  attempts  at  classification  under- 
taken by  sociologists,  it  will  perhaps  not  be  out  of  order  to  look  for 
a  moment  into  the  tw^o  modes  under  which  the  class  of  resemblance 
may  present  itself,  both  of  which  are  employed  in  natural  his- 
tory. The  first  has  received  the  name  of  artificial  classification, 
the  second  that  of  natural  classification.  In  natural  history, 
the  former  preceded  the  latter.^  Linnaeus  replaced  the  artificial 
order  by  the  natural  order  in  zoology ;  but  in  botany  he  preserved 
the  artificial  order.  Here,  the  reform  was  only  accomplished  by  the 
great  botanists  of  the  beginning  of  our  century,  Jussieu  and  the 
elder  Candolle.  The  admirable  structure  of  botanical  classification 
has  required  the  work  of  a  century.^  This  may  encourage  sociol- 
ogists. 

What  is  artificial  classification  ?  It  is  that  classification  in  which 
the  division  of  species  rests  on  a  single  characteristic.'*  This 
characteristic  is  chosen  not  because  of  its  importance  in  the 
organism,  nor  because  it  especially  points  out  the  greatest  number 
of  other  resemblances  and  differences  between  the  two  classes  of 
objects,  but  solely  because  it  is  easy  to  prove  and  distinguish. 
The  best  example  is  the  grouping  of  plants  by  Linnaeus  according  to 
the  number  of  stamens.  The  only  advantage  of  this  classification 
is  that  by  it  one  can  better  recall  the  number  of  these  organs. 
As  for  the  rest,  however,  its  utility  is  trifling. 

In  what,  then,  is  the  natural  classification  distinguished  from 
the  preceding?  In  that  it  chooses  as  a  principle  of  division  not 
a  single,  arbitrary  characteristic,  but  the  one  or  those  which  carry 
with  them  the  greatest  number  and  the  greatest  possible  variety, 
of  other  qualities.  Thus  an  essential  quality  which  alone  is  the 
cause  of  the  greatest  divergence  between  the  groups  which  possess 
it  and  those  which  do  not  is  preferred  as  a  principle  of  division.^ 
In  that  way,  the  greatest  number  of  general  truths  can  be  found 
for  these  two  groups.  It  may  be  said  that  those  qualities  are 
really  essential  which  contribute  most  in  making  the  members  of 

'  Moll,  "De  Invloed  van  Darwin's  Afstammingsleer  op  de  Botanie" 
(1890),  passim. 

2  According  to  Wundt  ("Logik",  II,  p.  43),  this  is  generally  the  case. 

3  De  Candolle,  "La  phytographie",  p.  73. 
*  De  Candolle,  lac.  cit.,  p.  181. 

»  Mill,  "Logic",  II,  p.  272;   Wundt,  "Logik",  II,  p.  41. 


18  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

one  group  similar  to  each  other  and  different  from  those  of  other 
groups.^    The  groups  thus  formed  are  truly  natural. 

******* 

The  supreme  test  for  each  truly  natural  classification  will  be 
this :  that  a  division  according  to  other  principles  will  lead  to  the 
same  grouping.^  That  will  be  the  proof  that  the  objects  having 
the  greatest  number  of  qualities  in  common  have  really  been 
classed  together,  and  that  those  differing  in  most  aspects  have 
been  separated ;  this  is  the  natural  aim  of  every  scientific  classi- 
fication. All  the  logicians  and  all  experienced  classifiers  are  agreed 
upon  that.  All  that  one  expects  from  a  grouping  of  objects  is  to 
facilitate  the  discovery  of  truths  as  general  as  possible,  and  to 
fix  them  in  the  memory  in  a  convenient  order  which  alone  will 
guarantee  their  use  at  the  opportune  moment.^ 

If  a  truly  natural  system  of  classification  be  once  established, 
it  seems  to  me  that  the  classification  by  the  genetic  order  would 
not  effect  much  of  a  change.  Certainly  the  relations  between  the 
groups  w^ill  then  appear  in  quite  another  light.  The  evolutionist 
theory  alone  has  attempted  to  establish  a  causal  connection  be- 
tween the  different  groups,  instead  of  a  simple  relation  of  co- 
existence in  the  mind  of  the  Creator.  Besides,  the  limits  of  the 
groups,  especially  the  most  advanced,  will  be  sometimes  modified 
by  the  importance  attached  to  the  genetic  relations.  But  in 
general,  the  really  natural  groups  based  upon  essential  similarities 
will  remain  invariable.  Must  my  character  be  placed  in  another 
group  because  those  of  my  parents  belonged  to  other,  different 
groups?  Do  the  different  principal  classes  of  the  branching  of 
the  vertebrae  resemble  each  other  less  essentially;  and  do  they 
differ  more  essentially  from  classes  belonging  to  other  branches 
because  there  is  a  theory  about  their  origin  and  about  the 
manner  they  are  derived  one  from  the  other  ?  I  cannot  conceive 
it.  The  four  principal  classes  of  Haeckel :  '*  protozoa,  metazoa, 
vertebrata,  and  mammalia,  are,  as  well  as  the  four  branches  of 
Cuvier,  based  upon  the  general  and  essential  plan  of  the  struc- 
ture of  animals.  It  is  certain  that  the  inferior  groups,  genera  and 
species  are  formed  after  the  resemblance  of  the  individuals;   no- 

1  Mill,  loc.  cit.,  p.  275. 

2  Sigwart,  "Logik"  (1878),  II,  pp.  550,  552. 

3  Mill,  loc.  cit.,  p.  270.  The  general  problem  of  classification  may  be 
stated  as  follows :  to  provide  that  things  shall  be  thought  of  in  such 
groups,  and  those  groups  in  such  an  order,  as  will  best  conduce  to  the 
remembrance  and  to  the  ascertainment  of  their  laws. 

4  Durand  (de  Gros),  loc.  cit.,  pp.  176  seq.     Agassiz,  loc.  cit.,  pp.  375  seq. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  19 

body  would  recognize  individuals  having  no  resemblance  to  each 
other,  although  of  the  same  descent,  as  forming  one  species.  One 
of  the  best  representatives  of  the  systematic  evolutionists  in  zoology 
concedes  this  last  point,  in  saying  that  the  recognition  of  the  kinds 
and  species  will  be  almost  always  possible  by  exterior  signs  alone, 
without  it  being  necessary  to  make  use  of  all  the  anatomical, 
ontogenetic,  and  paleontological  equipment.^ 

The  classification  by  genetic  order  can  have  no  other  aim  than 
to  discover  what  groups  have  had  kindred  origins,  and  the  same 
ancestry,  and  to  unite  them  in  one  and  the  same  superior  group. 
It  is  supposed  that  resemblance  generally  indicates  the  same 
origin ;  but  no  great  weight  is  placed  any  longer  on  entirely  super- 
ficial resemblance,  because  it  is  known  that  forms  which  at  fijst 
glance  appear  identical  to  us,  often  reveal  themselves  as  very 
different  when  we  know  their  phylogenetic  history.^  Resem- 
blance does  not  always  indicate  the  same  origin,  as  can  be  easily 
understood ;  diverse  phylogenetic  processes  may  finally  end  in  an 
identical  form.  To  appreciate  the  taxonomic  significance  of  a 
character,  it  is  particularly  necessary  to  know  all  the  functional 
significance  of  the  organism.'       « 

Certainly,  the  fundamental  use  of  anatomy,  of  ontogenesis,  of 
paleontology,  and  of  geography  brought  about  a  deeper  under- 
standing of  the  manner  of  estimating  the  principles  upon  which 
the  divisions  of  groups  are  based.  The  very  purpose  of  the 
formation  of  superior  groups,  especially  those  which  concern 
classes  and  families,  has  changed.  One  wishes  to  discover  be- 
tween them  a  relation  of  kinship  and  is  no  longer  satisfied  with 
the  simple  relation  of  resemblance.  But  I  do  not  see  that  the 
category  of  resemblance  should  disappear  entirely  from  the 
system.  The  groupings  by  resemblance  always  underlie  the 
ultimate  between  individuals.  Only  they  start  with  the  idea  that 
the  same  combination  of  the  same  heterogeneous  characteristics 
is  not  easily  to  be  found  in  groups  of  a  different  origin.  Con- 
sequently, when  two  groups  present  combinations  of  different 
qualities,  it  is  concluded  that  they  are  not  of  the  same  origin.** 

The  great  aim  of  system  in  natural  history  is  to  establish  the 
evolution  of  animal  forms.  If  the  identity  of  origin,  and  of  pro- 
found and  actual  resemblance  of  form  and  of  function,  are  not  to 
De  confused  in  the  long  run,  it  will  be  necessary  to  have  the  system 

'  Fiirbringcr,  "  Untersuchungen  zur  Morphologie  und  Systematik  der 
Vop^ol"  (1888),  p.  1137. 

2  Furbringer,  pp.  1127-1128.  ^  Furbringer,  p.  1129. 

*  FiirbringeT,  p.  1131. 


20  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

of  resemblance,  that  is  to  say,  the  natural  system,^  such  as  we 
have  described  according  to  the  authority  of  the  best  logicians, 
always  by  the  side  of  the  genetic  system.  In  short,  it  can  be  said, 
that  the  only  aim  of  the  entire  evolutionist  theory  is  to  explain 
causally  the  resemblances  which  are  to  be  found  in  nature.  Fiir- 
bringer  himself  recognized  the  practical  and  propaedeutic  use- 
fulness of  descriptive  systems.^ 

Thus,  for  the  sociological  aim  which  we  are  pursuing,  we  have 
the  choice  between  three  kinds  of  classification :  the  artificial 
system  (one,  single,  arbitrary  characteristic),  the  natural  system 
(a  group  of  essential  characteristics  which  indicate  the  greatest 
resemblance  or  difference),  and  the  genetic  system  (relation  of 
kinship  and  choice  of  principles  of  division  capable  of  deciding 
the  question). 

In  pursuance  thereof,  I  express  my  conviction  that  for  our 
special  aim,  which  is  not  so  much  to  explain  the  connection  of 
societies  as  to  hasten  in  general  all  the  sociological  studies,  by 
familiarizing  ourselves  with  the  types  of  society  and  civilization, 
and  by  enabling  us  always  to  have  present  in  our  minds  all  the 
representatives  of  each  of  them,  the  first  and  the  last  system 
are  not  the  best;  the  second,  called  natural,  is  the  only  one 
which  suits  our  purpose. 


IV.    The  Purpose  of  Sociological  Classification 

Before  we  commence  our  resume  and  our  criticism,  we  must 
first  clearly  understand  the  objects  which  we  wish  to  classify. 

They  are  the  very  objects  which  sociology  studies.  If  we  con- 
ceive its  domain  as  more  limited,  the  object  of  our  grouping  will 
be  more  restricted,  both  in  nature  and  number.  If  we  should 
consider  sociology  according  to  Simmel  as  the  science  of  different 
forms  of  hurnan  association,^  we  would  find  in  a  book  such  as 

1  It  seems  to  me  that  Fiirbringer  is  not  right  in  branding  every 
sy stern  which  is  not  genetic,  as  artificial  (p.  1121)  for  the  strong  and 
essential  resemblance  cannot  be  called  artificial.  However,  the  relation 
to  origin,  the  explanation  of  resemblances,  are  absent  in  this  system ; 
the  groups  are  not  connected  together  by  a  causal  tie,  but  only  by  an 
ideal  tie,  even  though  the  resemblance  is  a  real  fact. 

2  Loc.  ciL,  p.  1132. 

^Simmel,  "Das  Problem  der  Sociologie"  in  Schmoller's  "Jahrbiicher 
fiir  Gesetzgebung,  Verwaltung  und  Volkswirthschaft",  1894,  p.  1305; 
the  sole  object  of  sociology  will  be  the  study  of  forces,  of  forms  and  the 
evolution  of  human  associations.  Cf.  Thon,  "The  Present  Status  of 
Sociology  in  Germany",  in  "American  Journal  of  Sociology",  Jan.,  1897, 
pp.  568,  570. 


Ch-VP.  I.J  A    CLASSIFICATION   OF   SOCIAL  TYPES  21 

Gierke's  a  sufficiently  complete  historical  classification  of  these 
forms,  such  at  least  as  it  obtains  in  Germany.  But  when  properly 
interpreted,  the  definition  of  Simmel  is  susceptible  of  including  a 
much  more  extended  domain.  For  our  aim  at  least,  we  deem  it 
proper  to  accept  the  largest  conception  of  the  scope  of  our  science. 
In  that  case,  it  will  be  the  positive  and  comparative  study  of 
human  kind,  with  the  single  exception  of  its  physical  and  psychical 
foundation,  which  depends  upon  biology  and  psychology.^  Thus, 
all  societies  with  their  moral,  juridic,  economic,  and  demographic 
manifestations,  and  in  their  historical  evolution,  are  the  objects 
of  sociology.^ 

After  thus  defining  the  boundaries  of  our  domain,  it  is  under- 
stood that  the  objects  which  we  have  to  classify  will  be  the  various 
static  conditions  of  all  societies.  We  already  know  that  the  diverse 
manifestations  discussed  above,  such  as  obtain  in  a  certain  period 
in  the  same  society,  are  closely  connected  with  each  other.  These 
diverse  aspects  of  social  life  form  one  unit.  It  is  the  units  thus 
formed  that  we  wish  to  classify. 

With  the  peoples  whose  history  we  do  not  know,  or  who  have  no 
social  history,  that  is  to  say,  those  with  whom  no  essential  social 
change  has  been  discovered,  the  social  state  may  be  identified 
with  the  people;  we  can  say  that  we  classify  the  savage  races, 
and  not  the  different  phases  of  their  social  condition.  With 
historic  races,  it  is  altogether  different.  Here,  we  have  to  classify 
the  different  social  conditions  which  succeed  each  other  in  the 
course  of  the  evolution  of  these  peoples.  When,  then,  shall  we 
recognize  such  a  condition  as  sufficiently  different  from  those  that 
preceded  it,  in  order  to  constitute  a  distinct  social  phase?  The 
answer  to  that  question  results  from  what  we  have  said  of  the  very 
purpose  of  our  classification.  A  different  phase  will  emerge  before 
us  when  the  diverse,  essential  manifestations  of  society,  which 
are  interrelated  and  interdependent,  will  have  undergone  an  essen- 
tial change,  that  is  to  say,  a  change  which  aflPects  them  all  in  their 
relations  as  well  as  in  their  nature.  The  situation  is  just  the  same 
as  if  we  were  confronted  by  a  new  society,  which  naturally  has  to 
be  classified  like  the  others,  such  as  it  was,  and  such  as  it  no 
longer  is." 

When  can  we  admit  that  this  condition  is  fulfilled  ?    That  will 

^  Barth,''  Die  Philosophie  der  (Jeschichte  als  Sociologie"  (1897),  pp.  iv, 
10. 

2  That  some  poorly  defined  parts  of  this  general  sociology  are  cultivated 
by  more  or  less  independent  sciences  such  as  Economy,  Ethnology,  His- 
tory of  Religions,  History  of  Law,  etc.,  is  of  little  concern  to  us. 


22  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

depend  entirely  on  the  system  of  classification  which  we  will  have 
adopted.  If,  assuming  the  impossible,  the  classification  of  groups 
would  depend  on  the  amount  of  the  population  of  each  group, 
then  the  United  States  with  a  population  of  thirty  millions  in 
1880  would  belong  to  one  group,  and  now  with  a  population  of 
fifty  millions  ^  it  would  enter  another  group.  The  phase  which 
we  will  thus  be  called  upon  to  regard  as  a  unit,  will  remain  so  as 
long  as  the  principle  of  division  will  not  indicate  a  change. 

That  which  precedes  concerns  the  historical  extension  of  our 
units.  As  to  the  geographical  extension,  the  case  is  a  little  dif- 
ferent. Here,  two  methods  of  procedure  would  be  possible.  One 
might  say  that  a  social  unit  stops  geographically  there  where  an- 
other people  begins,  or  where  there  is  another  government,  another 
history,  often  another  language,  in  short,  where  all  the  conditions 
by  which  the  Hollanders,  Belgians,  and  Germans  find  themselves 
different  and  forming  different  peoples,  are  fulfilled.  Another 
measure  can  also  be  applied.  A  people  may  be  limited  to  the 
domain  where  the  same  system  of  social  characteristics  prevails. 
Then,  we  will  have  a  single  sociological  unit,  wherever  the  same 
type  of  family,  of  government,  and  of  demographic  distribution 
is  dominant.  It  seems  to  me  that  it  is  proper  to  regard  the  latter 
group  as  a  social  class  which  includes  many  units,  rather  than  as 
an  actual  unit.  Otherwise,  the  geographical  contiguity  would 
make  this  unit  disappear;  and  all  over  the  earth  there  would  be 
many  units  and  no  groups.  Our  geographical  units  will  be  those 
that  geography  and  ethnography  accept  as  such,  according  to  the 
unit  of  history,  of  supreme  government,  self-consciousness,  etc.^ 

V.   Previous  Attempts  at  Sociological  Classification 

Let  us  first  arrange  the  previous  attempts  in  several  groups. 
I  do  not  wish  to  apply  to  them  any  subtle  and  systematic  principle 
of  classification.  I  will  only  distinguish  them  according  to  their 
characteristic  traits. 

Thus  we  will  have  the  following  groups : 

1.  Vague  and  indefinite  groupings. 

2.  The  artificial  groupings  (Coste,  Ward,  Fouillee). 

3.  Those  according  to  the  degree  of  differentiation  (Spencer, 
Giddings,  De  Greef,  Durkheim).  »     , 

^  Mayo-Smith,  "Statistics  and  Sociology"  (1895),  p.  368. 

2  For  special  problems  a  special  classification  can  be  made,  as  it  was 
already  remarked  above;  cf.  my  article  "Die  neueren  Forschungen  zur 
Geschichte  der  menschlichen  Familie"  in  "Zeitschrift  fiir  Socialwissen- 
schaft"  (1899),  pp.  693-694  (reply  to  an  objection  by  M.  Westermarck). 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  23 

4.  Those  according  to  the  characteristics  and  intensity  of 
economic  life  (Liszt,  Biicher,  Vierkandt,  Peschel,  etc.). 

5.  Mixed  groupings  (Sutherland,  Le  Play). 

6.  Genetic,  historical,  and  ethnographic  classifications  (Brinton, 
Ratzel). 

7.  The  natural  classification  according  to  one  or  many  essential 
principles. 

1.  Let  us  begin  by  distinctions  into  very  vague,  hut  very  large 
classes,  which  alone  have  gained  some  popularity.  A  distinction 
is  often  made  between  historical  peoples  and  those  which  have  no 
history.  Certainly,  this  difference  implies  many  others,  which 
proves  its  importance.  The  historical  peoples  have  writing,  a 
certain  literature,  and  a  more  or  less  exact  knowledge  of  their 
past  —  all  things  which  the  others  lack ;  and  naturally  these  dif- 
ferences are  accompanied  by  an  innumerable  mass  of  others.  We 
consider  them  so  especially,  when  we  compare  the  extreme  examples 
of  both  sides  :  the  civilized  peoples  and  the  savage  tribes.  But  it 
is  not  proved,  and  it  is  even  very  improbable  that,  for  instance, 
the  Persians  and  the  Koreans,  the  Mexicans  and  the  Peruvians 
would  belong  to  different  classes  if  all  humanity  only  contained 
these  two.  ]Moreover,  the  division  into  two  is  too  simple,  of 
insignificant  utility,  and  it  must  be  limited  to  popular  usage. 

The  same  objections  can  be  made  to  another  analogous  division, 
that  which  distinguishes  peoples  into  barbarous  and  civilized,  and 
puts  savagery  on  one  side,  and  civilization  on  the  other.  Another 
objection  which  can  be  added  to  the  preceding  is  the  indefiniteness 
of  these  expressions.  The  systems  which  we  will  pass  in  review 
are  to  a  great  extent  merely  attempts  to  define  these  terms.  Let 
us  abstain,  then,  from  making  a  special  criticism  of  it.       ♦ 

There  is  more  claim  to  consideration  in  the  distinction  between  sta- 
tionary civilizations  and  progressive  civilizations.  The  great  ma- 
jority of  peoples  are  regarded  as  stationary,  while  the  other  category 
is  limited  to  the  Greeks,  to  the  Romans,  to  the  peoples  of  western 
Europe  and  to  their  dependants.  It  is  known,  moreover,  that 
Egypt,  Chaldea,  China,  India,  Japan,  Mexico,  and  many  others 
have  made  great  progress  in  their  times ;  Rome  and  Greece  have 
not  had  a  longer  existence.  But  let  us  go  further.  There  can 
be  only  one  truly  stationary  society  —  of  Pithecanthropi  —  men 
who  but  yesterday  were  monkeys.  There  is  not  a  single  truly 
primitive  people  on  earth.  All  the  others  have  made  enormous 
progress.    To  ignore  the  stages  through  which  they  have  passed, 


24  CRITERIA   OF  LEGAL  EVOLUTION        ,  [Part  I. 

perhaps  without  any  particular  direction,  is  the  greatest  mistake 
of  ethnology.  Peoples  should,  then,  be  divided  into  more  or  less 
progressive  types,  since  there  is  no  truly  stationary  people.  What 
quantitative  principle  can  furnish  such  a  rule?  I  think  that 
we  ought  to  discard  these  vague  and  useless  groupings.  Let  us 
pass  to  the  second  category. 

2.  I  call  artificial  the  classifications  which  apply  a  single,  ex- 
terior measure  more  or  less  arbitrarily  chosen. 

{a)  In  his  book  full  of  wholesome  thoughts  and  useful  sugges- 
tions, Coste  proposes  to  divide  societies  according  to  the  relations 
of  the  urban  population  to  the  whole  population  —  relations  which 
would  furnish  us  with  the  true  comparative  densities,  which  may 
be  called  the  sociological  densities.  For  him,  these  latter  are  the 
foundations  of  rational  sociometry.^  The  foundation  of  this  proj- 
ect of  classification,  or  sociometry,  which  amounts  to  the  same 
thing,  is  the  idea  that  all  social  progress  holds  together  and  reflects 
a  social  solidarity,  and  that  "all  these  results  proceed  from  the 
same  initial  phenomena,  the  numerical  increase  of  a  unified  popu- 
lation. "  "  I  willingly  concede  the  charms  and  advantages  of  this 
project.  The  measure  applied  is  divisible  into  as  many  parts  as 
one  wishes ;  it  is  more  exact  than  any  other  measure  which  sociol- 
ogy has  at  its  disposal.  It  would  be  very  unusual  for  a  people  to 
be  so  unknown  to  us  that  we  would  be  unable  to  ascertain  its  popu- 
lation and  to  what  extent  it  is  concentrated  in  the  cities.  I  do 
not  ignore  the  great  significance  of  the  numerical  increase  of 
population  for  the  progress  of  civilization.  I  know  that  it  has  been 
attempted  with  a  certain  plausibility  to  present  it  as  the  only  force 
which  urges  humanity  ahead. ^  The  concentration  of  the  popula- 
tion in  the  cities  is  certainly  of  great  value  as  a  symptom  of  the 
intensity  of  social  life. 

While  appreciating  the  importance  of  this  principle,  it  seems 
to  me  useless  as  applying  to  the  division  of  peoples.     It  is  a  pity 

1  A.  Coste,  "Les  principes  d'une  sociologie  objective"  (1890),  Paris, 
F.  Alcan,  p.  168. 

2  Ibid.,  p.  159. 

^  Loria,  "Les  bases  6conomiques  de  la  constitution  sociale"  (1893), 
p.  4.  The  thought  has  been  advanced  particularly  by  K.  Kautzky  in  his 
"Der  Einfluss  der  Volksvermehrung  auf  den  Fortschritt  der  Gesellschaf t " 
(1880).  This  resembles  the  competitive  predilection  of  the  small  mer- 
chants, especially  on  the  increase  of  population.  CJ.  Elster,  "Bevolke- 
rungswesen",in  "  Handworterbuch  der  Staatswissenschaften",  II  (1899), 
p.  709.  Darwin  himself  was  inclined  towards  this  idea:  cJ.  "Descent  of 
Man",  1894,  p.  618,  and  Ploetz,  "Die  Fiichtigkeit  unsrer  Rasse  und  der 
Schutz  der  Schwachen"  (1895),  pp.  4,  208. 


Chap.  I.]  A   CLASSIFICATION  OF  SOCIAL  TYPES  25 

that  Coste  only  applies  it  to  civilized  peoples ;  otherwise  he  would 
have  obtained  very  curious  results.  Peoples  who  have  evidently 
reached  the  same  stage  of  progress  in  their  social  culture,  would 
find  themselves  widely  separated  by  the  application  of  this  prin- 
ciple; for  example,  China  and  Persia.  According  to  the  chance 
by  which  one  people  includes  a  desert  within  its  frontiers,  and 
another  is  confined  between  powerful  enemies,  the  first  would  be 
placed  beneath  the  second.  Mr.  Coste  himself  is  obliged  to  muti- 
late his  principle  by  including  in  the  United  States  only  the  31 
older  states.^  Why  does  he  not  do  the  same  for  Russia,  Sweden, 
Norway,  Turkey,  and  Austria  ?  There  are  still  other  consequences 
which  condemn  the  system :  France  (100)  ^  is  placed  beneath 
Russia  (103) ;  the  older  states  of  the  United  States  (198)  far  above 
Germany  (122);  the  Netherlands  (24)  beneath  Turkey  (26); 
Spain  (19)  above  Belgium  (12).  From  these  comparisons  one 
would  estimate  that  Holland  (24)  is  much  more  industrial  than 
Belgium  (12),  while  in  fact  the  contrary  is  the  truth.  Moreover, 
I  believe  that  the  basis  of  this  principle  consists  of  an  exaggerated 
appreciation  of  the  importance  of  large  cities.  Will  not  im- 
provement in  the  means  of  transportation  bring  about  the  end  of 
that  concentration  which  forms  the  greatest  danger  to  our  modern 
life?  Does  the  sane  and  civilized  population  of  Sweden  (7) 
deserve  to  be  placed  far  down  on  Coste's  list,  far  below  Turkey 
(26)  and  Japan  (58)  ? 

Great  as  may  appear  the  value  of  sociometry  for  the  interpreta- 
tion of  history  and  international  relations,  for  our  end  it  seems  to 
me  useless.  I  do  not  believe  that  this  criterion  sufficiently  in- 
volves the  most  essential  social  differences  as  its  corollaries ;  but 
that  is  what  we  ought  to  look  for.  I  believe  I  am  right  in  calling 
this  division  artificial  and  in  rejecting  it  as  such.^ 

(b)  The  division  of  societies  which  Fouillee  proposes  to  us  has 
for  foundation  the  relation  of  the  whole  to  its  parts.'*  He  applies 
this  principle  to  the  classification  of  individual  organisms,   to 

»  Loc.  cU.,  p.  174. 

2  These  figures  indicate  the  product  of  the  population  with  concentra- 
tion in  large  cities. 

3  What  still  more  militates  against  this  test  is  the  fact  that  in  little 
time  the  large  cities  can  perceptibly  grow  larger  without  changing,  for 
that  matter,  the  social  state  of  the  land  in  general,  as  in  America,  in 
western  Australia,  and  in  the  Transvaal.  It  was  one  of  the  blunders  of 
England  to  have  overlooked  that,  Johannesburg  notwithstanding,  the 
Boers  have  remained  the  same  as  at  Amajuba. 

*  A.  Fouillee,  "La  science  contemporaine "  (1897),  pp.  168-193. 
Cf.  P.  Barth,  "Die  Philosophie  der  Geschichte  als  Sociologie"  (1897),  I, 
p.  149. 


26  CRITERIA   OF  LEGAL  BVOLUTION  [Part  I. 

animals  as  well  as  to  societies.  He  does  not  admit  the  antagonism 
established  by  Spencer  between  physical  organisms  with  a  strict 
centralization  and  in  which  the  parts  exist  only  for  the  whole, 
and  societies  where  the  whole  exists  only  for  the  individuals,  who 
are  alone  capable  of  pleasure  and  sorrow.^ 

According  to  Fouillee,  in  this  connection  of  the  whole  to  its 
parts  there  is  an  evolution,  the  phases  of  which  form  the  classes 
of  his  division.  Society  tends  towards  the  realization  of  the  ideal 
of  an  organism  whose  parts  would  be  conscious  individually  and 
collectively  —  an  ideal  which  is  not  realized  in  physical  organisms.^ 

The  first  class  contains  very  rudimentary  and  decentralized 
societies  in  which  the  whole  exists  for  the  parts  rather  than  the 
parts  for  the  whole;  for  example,  the  savage  tribes.  I  wish  to 
make  two  remarks.  To  begin  with,  this  characterization  is  shock- 
ingly vague;  what  is  meant  by  savage  tribes?  what  are  their 
limits  ?  what  are  the  signs  by  which  one  can  recognize  this  class  ? 
But  above  all,  I  believe  that  the  opinion  of  the  ethnologists,  and 
they  alone  are  competent  upon  this  point,  is  altogether  contrary 
to  Fouillee's  idea  on  the  solidarity  of  savage  races.''  They  always 
consider  them  as  living  in  the  midst  of  groups  as  closely  united 
as  possible,  and  their  social  manifestations  all  bear  the  mark  of 
this  close  unity.  According  to  them,  the  individual  has  not  yet 
been  differentiated  from  the  entirety. 

Fouillee's  second  class  embraces  "the  societies  of  imperfect 
centralization  and  decentralization  in  which  the  whole  exists 
more  for  the  parts  than  the  parts  for  the  whole."  "Then  there 
is  a  centralization  more  involuntary  than  voluntary,  under  the 
action  of  a  supreme  chief  —  whose  authority  each  tribe,  each 
individual  longs  to  escape.  It  is,  so  to  speak,  despotism  in  balance 
with  anarchy. "  ^  The  Middle  Age  with  feudalism  furnishes  an 
example. 

I  presume  that,  in  general,  feudalism  would  be  a  characteristic 
trait  of  this  class;  but  then,  there  is  a  difficulty  in  the  always 
neglected  fact  that  feudalism  is  not  altogether  confined  to  the 

1  Spencer,  "Sociology",  I,  p.  449:  the  society  exists  for  the  benefit 
of  its  members. 

2  Fouillee,  loc.  cit.,  p.  176. 

3  Thus  expatiates  itself  the  disdain  towards  the  savages  on  the  part 
of  philosophers  and  economists,  who  represent  to  us  the  first  phases  of 
the  ontogenesis  of  the  human  kind.  M.  Coste  wishes  to  exclude  them 
from  the  objects  of  sociology  {loc.  cit.,  p.  iii).  Fouillee  does  not  seem 
either  to  have  studied  them  in  a  special  manner.  Would  a  student  of 
general  biology  ever  neglect  the  inferior  organisms  or  the  branches  of 
radiary  or  of  protozoary? 

4  Loc.  cit,,  pp.  178-179. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  27 

Middle  Ages ;  it  has  a  much  more  extensive  domain,  and  is  often 
found  among  the  peoples  called  savage.^  Neither  does  it  appear 
clearly  whether  the  peoples  called  barbarous  (Ancient  Mexico, 
Peru,  China,  Persia,  Ancient  Egypt,  Roman  Empire,  Soudan, 
Hindu  States,  the  empire  of  the  Mogul,  etc.,  etc.)  ought  to  be 
ranged  in  this  class  or  the  following.  Could  Fouillee  have  been 
thinking  only  of  Europe?  That  would  be  an  exclusiveness,  the 
analogy  of  which  would  have  been  ridiculous  in  botany  and  zoology. 
In  the  Middle  Ages  in  the  cities,  the  life  of  a  group  was  very  active, 
much  more  pronounced  than  at  any  subsequent  period.  The 
relation  between  the  parts  and  the  whole  was  not  weak ;  but  the 
more  active  groups  were  smaller.  Fouillee,  as  a  philosopher  with 
too  large  views,  ignores  all  these  distinctions.  In  China  also, 
the  restricted  community  is  very  strong,  but  the  organization  of 
the  empire  is  very  loose. 

The  third  class  contains  "the  military  states  of  Spencer"  in 
which  the  individual  exists  more  for  the  state  than  the  state  for 
the  individual.  The  European  states  from  the  sixteenth  to  the 
eighteenth  century  would  be  included  in  that  class,  Germany  of 
the  nineteenth  century  perhaps  more  than  that  of  the  eighteenth 
century.  The  empire  of  the  Caliphs  would  belong  to  that  class 
more  than  any  other,  likewise  that  of  Tchengis  Khan  and  Tamer- 
lane. But  there  is  a  great  difference  between  our  Germany  and 
these  barbarous  empires ! 

The  fourth  class  includes  the  very  superior  societies  in  which 
the  state  exists  for  the  individuals,  rather  than  the  individuals 
for  the  state  —  the  highest  form,  to  which  the  future  belongs. 
Do  Belgium,  Italy,  Holland,  and  the  United  States  form  military 
states,  or  do  they  express  the  supreme  form  of  society  which  will 
last  until  eternity  ?    We  cannot  imagine  either  one  or  the  other. 

(c)  The  classification  which  Lester  Ward  proposes  in  his  great 
work  is  very  similar  to  that  of  Fouillee.^  Ward  distinguishes 
four  phases.  The  first  he  calls  the  solitary  or  antarchic  stage; 
it  is  that  in  which  man  lives  alone,  or  in  little  isolated  groups  —  a 
purel}'  hypothetical  phase.     The  second  is  the  constrained  aggre- 

^  Cf.  for  example:  Marcuse,  "Hawaiische  Inseln"  (1894),  p.  95; 
Charnay,  "La  Civilisation  Tolteque",  "Revue  d'Ethnographie  ',  IV, 
p.  302;  Haarhoff,  "Bantustamme  Sud-Africas",  p.  61  (Zouloos) ;  Veth, 
"Timor",  p.  24;  L.  Wilson,  "West  Africa"  (1862),  p.  132  (Ashanti) ; 
Hunter,  "Brief  History  of  Indian  Peoples",  pp.  138,  177;  Prochewalski, 
"Mongolei",  p.  517  (Trangouts) ;  Colquhoun,  "Among  the  Shans", 
pp.  256  seq.     I  only  give  a  few  of  my  notes. 

'  Lester  Ward,  "Dynamic  Sociology"  (1883),  I,  pp.  464-^67.  I  regret 
not  to  know  more  than  the  first  edition  of  this  important  book. 


28  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

gate  or  anarchic  stage ;  the  association  here  is  constrained,  the 
individual . is  free,  but  does  not  live  in  security;  social  virtue  is 
still  unknown.  It  is  an  ephemeral,  transitory  phase,  of  which  one 
finds  trace  among  the  Fuegians,  central  Australians  (almost  un- 
known), the  Veddahs,  and  the  Bushmen.  But  no  ethnograj)her 
has  ever  reported  that  their  association  is  constrained  except  by 
the  need  of  a  common  life,  and  it  is  not  otherwise  with  us.  As  for 
saying  that  this  phase  is  ephemeral,  the  assertion  seems  to  me 
gratuitous.  Did  not  the  paleoliths  live  in  this  situation,^  and  is  it 
not  probable  that  all  of  human  kind  has  passed  through  the  same 
phase,  and  only  passed  out  of  it  after  hundreds  of  centuries  ? 

The  third  phase  is  called  the  national  or  politarchic  stage; 
from  that  time  on  there  are  chiefs,  and  the  beginnings  of  govern- 
ment; war  makes  larger  nations.  This  phase  actually  includes 
all  of  human  kind  with  the  sole  exception  of  inferior  savages.  As 
to  the  fourth,  the  cosmopolitan  or  pantarchic  stage,  it  belongs  to 
the  future.  It  goes  without  saying  that  such  a  classification  will 
not  help  us  at  all  in  attaining  our  aim;  it  is  rather  a  rapid  esti- 
mate of  political  evolution. 

The  common  fault  of  these  three  attempts  consists  in  this : 
that  they  divide  all  societies  and  consider  social  evolution  under 
a  single  aspect  only.  Now,  it  is  always  much  more  probable, 
in  sociology  as  in  zoology,  that  the  ramification  of  a  tree  in  many 
directions  represents  the  scheme  of  classification  which  is  most 
similar  to  the  reality  of  evolution. 

2.   The  second  group  of  systems  which  we  will  treat  is  character-' 
ized  by  the  fundamental  importance  attributed  to  the  fact  of 
differentiation.     They   are   all   based   on  the   model   of   Herbert 
Spencer,  and  are  only  modifications  thereof.     We  will  commence, 
then,  with  that  one. 

******* 

(a)  In  summarizing  his  proposition,  Spencer  ^  only  distinguishes 
two  principles  according  to  which  he  wishes  to  distinguish  societies ; 
but  the  first  is  double.  In  the  first  place,  societies  would  be 
ranged  according  to  their  degree  of  integrity,  as  simple  or  more 
or  less  complex;    but  this  evolution  in  the  degree  of  complexity 

1  Tylor  has  proven  that  the  paleoUths  resembled  in  everything  the 
Tasmanians  recently  exterminated  by  the  English.  Cf.  Ling- Roth, 
"The  Aborigines  of  Tasmania"  (1890),  pp.  v,  et  passim;  E.  B.  Tylor, 
"On  the  Tasmanians  as  Representatives  of  Paleolithic  Man",  "Journal 
of  the  Anthropological  Institute  of  Great  Britain  and  Ireland",  XXIII 
(1894),  pp.  141  seq. 

2  "The  Principles  of  Sociology"  (1893),  I,  p.  562. 


Chap.  I.]  A  CLASSIFICATION   OF   SOCIAL  TYPES  29 

is  accompanied  by  a  corresponding  evolution  in  the  degree  of 
differentiation  —  that  is  to  say,  increasing  heterogeneity.  Thus, 
since  the  second  series  always  develops  parallel  to  the  first,  the 
two  would  form  a  single  principle  of  classification :  differentiation 
is  a  corollary  of  integration.  The  second  principle,  less  definite 
according  to  Spencer,  is  the  division  into  military  and  industrial 
societies.^  The  first  are  particularly  characterized  by  compulsory 
cooperation,  the  second  by  voluntary  cooperation. 

In  the  tables  ^  which  he  has  set  up  to  elucidate  the  first  group- 
ing, according  to  integration  and  differentiation,  Spencer  makes 
three  different  distinctions.  In  the  first  place,  he  establishes 
four  different  classes :  simple  societies,  societies  simply  compound, 
societies  doubly  compound,  societies  trebly  compound.  The 
last,  of  which  he  says  nothing  more  there,  include :  ancient 
Mexico,  the  Assyrian  empire,  the  Egyptian  empire  (of  which 
period?),  the  Roman  empire.  Great  Britain,  France,  Germany, 
Italy,  and  Russia;  several  of  these  states  would  perhaps  have 
attained  a  still  higher  phase.  The  three  first  classes  are  further 
subdivided  according  to  whether  the  peoples  have  no  chiefs  at  all, 
or  only  an  occasional  chief,  or  a  chief  who  although  permanent 
has  only  an  indefinite  and  unstable  power;  the  highest  class  in- 
cludes societies  which  possess  a  well-established  government.  The 
first  of  these  subdivisions  is  absent  in  the  second  and  third  class, 
where  there  are  no  longer  peoples  without  leaders. 

Finally,  in  these  subdivisions  of  the  classes,  new  distinctions  are 
again  introduced,  according  to  whether  the  peoples  are  nomadic 
(be  they  hunters  like  the  Fuegians  and  Bushmen,  or  farmers  like 
the  Bedouins),  semi-nomadic  or  altogether  settled.  Spencer  cites 
examples  of  people  for  each  "  species  infima." 

This  system  of  the  great  sociologist  does  not  altogether  satisfy, 
even  though  we  recognize  its  advantages.  These  advantages 
consist  of  the  fundamental  and  profound  characteristics  of  the 
superior  classes  of  one  subdivision  as  well  as  of  another,  and  of 
the  clearness  of  both  subdivisions  (according  to  the  character  of 
the  ruler,  and  according  to  the  relation  of  the  people  to  the  soil). 
But  there  are  serious  objections  to  this  classification.  In  the 
first  place,  it  seems  to  me  a  great  inconvenience  that  the  two 
divisions  have  no  relation  to  each  other.  They  are  really  two 
different  classifications  which  have  nothing  to  do  with  each  other, 

^  hoc.  cit.,  pp.  544-577.  Also  in  the  "Political  Institutions",  1885, 
pp.  568  seq.,  603  seq.  Spencer  has  described  more  explicitly  these  two 
types  of  societies. 

2  Loc.  cit.,  pp.  539,  540,  542. 


30  CRITERIA   OF  LEGAL  EVOLUTION  [Paet  I. 

and  neither  aid  nor  complement  each  other.  There  are  industrial, 
peaceful  peoples  in  the  first  two  classes  of  the  system  of  differen- 
tiation/ and  all  the  peoples  of  treble  or  quadruple  composition 
are  more  or  less  military.  The  militarism  or  industrialism  of  a 
society  does  not  seem  to  me  to  furnish  the  proper  basis  of  a  classi- 
fication. This  characteristic,  moreover,  is  not  very  stable;  the 
United  States  seem  to  us  to  be  the  least  militaristic  state  in  the 
world,  and  yet  the  manner  in  which  they  possessed  themselves  of 
the  Spanish  colonies  has  shown  them  to  be  extremely  militaristic, 
—  a  revelation,  the  spirit  of  which  has  been  still  more  accentuated 
by  the  attempts  which  they  have  made  to  suppress  liberty  in  the 
Philippines.  The  industrial  or  military  characteristic  of  a  society 
might  figure  as  a  secondary  trait  in  one  or  several  groups,  but  it 
could  not  furnish  us  a  principle  of  division.  As  for  the  rest,  the 
only  truly  industrial  peoples,  that  is  to  say,  essentially  peaceful, 
would  be  a  few  societies  which  from  another  point  of  view  ought 
to  figure  at  the  bottom  of  the  ladder ;  ^  for  we  have  not  known, 
until  now,  any  civilized  people  which  has  not  been  more  or  less 
military.     Such  a  division  would  be  altogether  useless. 

The  other  classification  of  Spencer  does  not  seem  to  me  perfect, 
either.  The  celebrated  author  only  shows  very  summarily  the 
importance  of  these  groupings ;  that  is,  he  does  not  clearly  show 
how  these  distinctions  are  compatible  with  an  endless  number  of 
connected  characteristics.  In  other  words,  he  does  not  establish 
that  they  are  truly  essential  in  the  evolution  of  societies  and 
civilizations.  We  have  enumerated  the  peoples  who  have  quali- 
fied as  trebly  compound.  How  can  one  not  be  struck  by  the 
diversity  of  the  societies  included  in  this  class?  The  German 
empire  and  ancient  Mexico  are  found  side  by  side  there  I  It 
seems  to  me,  however,  that  there  are  many  more  differences  be- 
tween them  than  between  the  Comanches  (second  class)  and  the 
Iroquois  (third  class).  The  Athenian  federation  is  placed  beneath 
that  of  the  Iroquois  and  the  Araucanians,  in  the  second  subdivi- 
sion of  the  third  class !  ^  Are  not  such  errors  due  to  the  too 
superficial  nature  of  this  principle  of  division  ?    On  the  other  hand, 

^  Spencer  himself  names  the  Bodos  and  the  Dhimals,  the  Todas,  the 
Mishmes,  the  white  Karens,  the  Lepehas,  the  Pueblos,  the  Santals,  and 
the  Papuan  Arafuras  ("Pol.  Inst.",  pp.  616,  617);  c/.  "Ethics",  I,  pp. 
396  seq.  Many  others  could  have  been  added,  particularly  the  Esquimaux 
of  Point  Barrow  {Murdoch,  "Rep.  Am.  Bur.  EthnoL",  87-88,  p.  41),  the 
Veddahs  (Sarasin,  "Die  Weddah",  p.  488),  the  Chamkani  {Bellew, 
"Afghanistan",  p.  86),  etc. 

2  In  some  lines,  pp.  538,  541. 

3  Durkheim,  "Les  regies  de  la  m6thode  sociologique "  (1895),  p.  102. 


Chap.  L]  A  CLASSIFICATION   OF  SOCIAL  TYPES  31 

the  definition  that  Spencer  gives  of  the  simple  society  is  so  vague 
that  all  savage  peoples  might  be  entered  in  one  single  class. ^ 

Again,  it  seems  to  me  that,  having  passed  a  certain  stage,  a 
higher  composition  of  societies  no  longer  is  attended  by  great 
difl'erences.  Has  Belgium  changed  so  much  in  its  fundamental 
characteristics  since  the  foundation  of  its  Congo  colony?  Are 
not  Holland,  with  its  extended  colonies,  and  Switzerland,  which 
has  never  had  any,  similar  in  essential  respects;  and  if  they  are 
different,  which  is  not  contestable,  are  these  differences  indeed 
due  to  that  circumstance  ?  It  will  be  necessary  to  prove  the  reality 
of  these  relations  before  the  utility  of  this  system  could  be  regarded 
as  established.  And,  no  disciple  of  the  great  father  of  sociology 
has,  as  far  as  I  know,  fulfilled  this  condition.  Spencer's  classifi- 
cation is  more  a  consequence  of  his  system  than  an  attempt  to 
find  the  most  useful  order  for  our  researches  in  the  mass  of  societies. 
It  is  a  philosophical  rather  than  a  sociological  system,  a  theo- 
retical rather  than  practical  one. 

(b)  The  classification  which  Durkheim  proposes,  and  which  he 
calls  morphological,^  is  an  improvement  on  that  of  Spencer.  In 
the  first  place,  Durkheim  gives  us  a  better  definition  of  a  simple 
society,  without  departing  from  these  systems.  He  calls  by  this 
napie  a  society  which  does  not  include  others  simpler  than  itself,^ 
and  the  parts  of  which  are  individuals  and  not  groups.  It  is  the 
horde  whose  members  are  atomically  in  juxtaposition  to  each 
other. ^  Perhaps  there  is  no  living  example  of  such  a  society ; 
but  certainly  there  are  societies  formed,  immediately  and  without 
another  intermediary,  by  a  repetition  of  hordes :  then,  this  horde, 
a  part  of  a  larger  whole,  is  called  clan.  Durkheim  does  not  see 
any  difficulty  in  the  fact  that  the  known  clans  are  composed  of 
families,  first  because  the  family  formed  themselves  after  the  clan,^ 
and  then  because  the  family  is  not  a  social  segment,  not  being  a 
political  division.^  (Here,  I  must  interrupt  our  author.  In  the 
first  place,  why  is  not  the  primitive  family  a  political  division, 
since  it  includes  the  first  principle  of  authority,  the  prolific  source 
of  the  development  of  public  authority  ?  ^  Then,  are  social 
segments  and  political  divisions  the  same  thing?  Durkheim  has 
not  proved  it :  and  after  all,  these  are  the  societies  which  we  are 

'  Durkheim,  loc.  cit.,  p.  101.  *  Loc.  cit.,  p.  100. 

3  Loc.  cit.,  p.  102. 

<  By  the  same  author,  "La  division  de  travail  social"  (1893),  p.  189. 
5  Which  seems  to  me  very  hard  to  prove.  «  Loc.  cit..,  p.  103. 

'  C/.  my  "Erste'Entwicklung  der  Strafe"  (1894),  II,  eh.  vi,  vii, 
and  VIII. 


32  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

trying  to  classify.  Finally,  what  difference  does  it  make  if, 
chronologically,  the  family  was  formed  after  the  clan,  if  mor- 
phologically, it  is  an  integral  part  of  it  ?) 

The  other  classes  are  formed  by  every  possible  combination  of 
these  clans.  All  these  modes  of  combination  would  be  just  as 
many  fundamental  classes.  From  this  point  of  view  one  would 
find,  in  the  first  place,  aggregate  forms  of  clan  without  inter- 
mediary groups,  called  simple,  polysegmentary  societies,  —  for 
instance,  certain  of  the  Iroquois  and  Australian  tribes,  the  Kabyles, 
the  Athenian  phratry,  and  the  Roman  curia.  The  third  class 
is  formed  by  the  polysegmentary  societies  simply  compounded, 
for  example,  the  confederation  of  the  Iroquois  and  Kabyles,  and 
the  three  primitive  Roman  tribes.  The  fourth  class  includes 
polysegmentary  societies  doubly  compounded,  of  which  the  con- 
stituent parts  are  themselves  simply  compounded  societies;  for 
instance,  "the  city,  an  aggregate  of  tribes  w^hich  are  themselves 
aggregates  of  the  curia,  which  in  their  turn  are  resolved  into  gentes 
or  clans."  ^  Thus  it  would  follow,  each  superior  type  would  be 
formed  in  general  by  a  repetition  of  societies  of  the  type  imme- 
diately inferior.  There  are  always  exceptions  to  this  rule  :  there 
are  societies  of  which  the  constituent  parts  are  not  of  the  same 
class  —  such  as  the  Roman  empire. 

Durkheim  then  attempts  to  distinguish  the  varieties  of  each 
class,  according  as  to  whether  the  segments,  of  which  society  is 
formed,  have  retained  more  or  less  of  their  individuality,  or  have 
been  altogether  absorbed.^  This  mode  of  composition  is  really 
of  great  importance.  Side  by  side  with  the  Germanic  tribes 
which  the  author  names,  a  still  better  example  of  the  independence 
of  tribes  in  the  midst  of  society  —  better  because  of  its  develop- 
irient  on  an  immense  scale  —  is  furnished  by  the  Chinese  empire, 
where  the  gentes  and  families,  far  from  being  absorbed,  have 
retained  a  great  preponderance.^  Still  other  varieties  might 
establish  themselves  by  the  degree  in  which  in  one  composition, 
one  segment  suppresses  another,  or  the  segments  are  equal. 

One  cannot  ignore  the  importance  of  this  contribution  to  Spen- 
cer's method,  nor  that  it  constitutes  an  important  correction. 
With  good  reason,  Durkheim  abandons  the  distinction  between 
military  and  industrial  societies.  Both  subdivisions  of  Spencer 
(according  to  the  character  of  the  ruler  and  the  connection  with 

1  Loc.  cit.,  p.  104.  2  i^oc.  cit.,  pp.  105,  106. 

^  Wells  Williams,  "The  Middle  Kingdom"  (1883),  I,  pp.  473-486; 
Douglas,  "China"  (1899),  pp.  231,  380. 


Chap.  I.]'  A  CLASSIFICATION  OF  SOCIAL  TYPES  33 

the  soil)  are  likewise  put  aside  by  the  author,  who  retains  only  the 
principal  division  according  to  the  degree  of  composition. 

To  resume  our  ungrateful  task  of  criticism,  this  system  is  open 
to  the  same  objections  as  that  of  Spencer.  Although  Durkheim 
himself  has  recognized  the  necessity  of  choosing  the  essential 
traits  as  a  principle  of  division/  he  makes  no  pretense  of  proving 
that  his  system  carries  with  it  the  infinite  number  of  derivative 
characteristics,  which  distinguishes  the  true  principle  of  classi- 
fication. I  believe  that  his  division  is  deficient  because  of  this.  I 
see  proof  of  it  in  the  fact  that  the  Iroquois  and  the  Australians  are 
placed  in  the  same  class.  Read  the  most  optimistic  description  of 
the  most  advanced  Australians,  that  of  Dawson,^  and  the  picture 
which  Hale  has  traced  of  the  Iroquois,^  and  judge  whether  these 
two  peoples  should  not  have  been  placed  in  different  classes.  On 
the  other  hand,  Durkheim  speaks  of  the  curia,  the  phratries,  and 
the  "arch"  [tribe]  of  the  Kabyles;  that  would  presume  that  he 
classifies  types  of  human  association  rather  than  complete  socie- 
ties. In  that  case  it  would  be  natural  enough  for  him  to  have 
chosen  this  principle  of  classification,  which  for  such  an  aim  is 
almost  the  only  one  possible.  But  in  his  introduction  and  in  his 
conclusion,  if  I  have  properly  understood  them,  nothing  indicates 
that  he  had  thus  limited  the  object  of  his  research.  But  if  he 
too  is  attempting  to  classify  entire  societies,  it  does  not  seem  to 
me  to  prove  anything  except  that  the  degree  of  segmentation  is 
the  most  essential  characteristic  trait.* 


(c)  No  other  disciple  of  Spencer  is  as  explicit  on  our  subject 
as  Giddings,^  as  might  however  have  been  expected,  since  he  alone 
has  the  great  merit  of  having  WTitten  a  complete  and  elementary 
treatise  of  our  science,  a  treatise  which  has  a  number  of  good 
qualities. 

Giddings  begins  very  properly  by  recognizing  that  every  dis- 
tinct science  ought  to  have  its  own  classification  and  nomenclature, 
because  its  phenomena  are  not  the  same  as  those  of  other  sciences, 
even  though  they  resemble  them.^  The  way  to  avoid  the  mistakes 
of  classification  is  to  classify  according  to  a  single  principle ;   we 

^  Loc.  cit.,  p.  99.  2  Dawson,  "Australian  Aborigines"  (1881). 

3  H.  Hale,  "The  Iroquois  Book  of  Rites"  (1883). 

*  Of.  the  criticism  of  Worms,  "Organisme  et  Soci^t^"  (1896),  pp.  286- 
287. 

5  "Principles  of  Sociology"  (1896).  However,  it  is  not  easy  to  be 
complete  in  our  science ;  thus  war  is  entirely  ignored  in  this  treatise. 

^  Loc.  cit.,  p.  63. 


34  CRITERIA   OF   LEGAL   EVOLUTION  •   [Part  I. 

know  exactly  that  according  to  logicians  this  would  be  the  charac- 
teristic trait  of  the  artificial  classification.  This  single  principle 
(we  will  see  later  that  Giddings  does  not  support  it)  would  be,  as 
Spencer  has  proposed  it,  the  degree  of  differentiation,  which  at 
least  would  reconcile  for  us  the  type  of  Whewell  and  the  definition 
of  Mill.  "A  true  class  is  that  in  which. the  objects  are  grouped 
together  according  to  some  characteristic  which  has  been  pro- 
duced by  normal  differentiation.  So  if  this  genetic  criterion  were 
not  applied,  temporary  or  casual  relations  of  phenomena  would 
be  taken  for  permanent  and  essential  relations."  ^  We  await 
proof  of  it.  As  for  the  rest,  this  assertion  is  not  very  clear,  for 
I  do  not  believe  that  for  an  evolutionist  theory,  there  could  be  a 
single  thing  which  had  not  been  produced  by  normal  differentia- 
tion —  the  cause  of  everything. 

Mr.  Giddings  remarks^  that  the  only  sure  method  of  distinguish- 
ing inferior  forms  from  superior  forms,  those  which  precede  from 
those  which  follow,  is  to  establish  the  genetic  relations  indicated 
by  the  degree  of  differentiation.  But  certainly  this  remark  is 
not  true  in  its  application  to  peoples.  Did  not  one  people,  al- 
though related  to  another,  have  to  pass  through  alone  the  different 
stages  of  its  development?  The  Ossetes  of  Russia  are  kin  of  the 
Germanic  peoples;  their  degree  of  social  differentiation  does  not 
at  all  show  this  relationship. 

Though,  however,  our  author  repeats  in  several  ways  that 
classification  according  to  the  degree  of  social  differentiation  alone 
will  succeed,  he  himself  does  not  unfortunately  give  us  an  explicit 
classification.  Nevertheless,  his  book  contains  many  indications 
in  this  direction.  In  uniting  them,  one  can  form  some  idea  of 
the  classification  of  societies  such  as  he  conceives  it.  He  begins  by 
making  a  fundamental  distinction  between  ethnical  and  demotic 
societies.  The  first  are  genetic  associations,  where  a  blood  re- 
lationship, real  or  fictitious,  is  the  principal  social  connection; 
the  second  are  aggregate  associations  connected  by  interest,  cus- 
tom, and  cooperation.  It  seems  to  me  there  are  no  peoples  with 
whom  kinship  and  birth  do  not  play  a  preponderant  role ;  other 
bonds  are  joined  with  them,  but  the  first  and  most  important  is 
always  blood;  that  is  true  even  of  the  United  States,  in  which 
the  numerous  immigrants  become  true  Americans  only  in  the 
second  generation.  Ethnical  societies  comprise  all  societies,  up 
to  the  civilized  societies,  which  possess  a  fixed  territory,  a  socially 
developed  constitution,  commerce,  social  classes,^  etc.     But  all 

1  Loc.  cit.,  p.  63.  2  Lqc,  cit.,  p.  64.  ^  Lq^.  cit.,  pp.  157,  158. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  35 

these  conditions  are  fulfilled  by  peoples  called  barbarous  (Chinese, 
INIohammedans,  Mexicans,  etc.).  Does  Giddings  include  them 
among  the  civilized  ?  And  yet  with  them,  relationship  and  even 
tribes  still  play  a  leading  role !  One  can  say  the  same  of  many 
other  peoples,  for  instance,  the  Javanese.  I  believe  that  our  author 
would  have  much  trouble  in  dividing  actual  societies  according 
to  that  rule.  Besides,  it  is  not  apparent  that  these  distinctions 
are  made  according  to  the  stages  of  differentiation ;  it  is  certain 
that  Giddings  has  not  proved  that  origin.  Likewise,  he  forgot 
to  show  us  that  these  distinctions  are  essential,  that  these  traits 
admit  of  the  greatest  possible  number  of  derived  characteristics. 

The  existing  ethnical  societies  are  shortly  divided  by  him  into 
three  groups  according  to  their  degree  of  social  composition :  (1) 
small  hordes,  sometimes  temporarily  united ;  (2)  tribes,  or  united 
and  extended  hordes,  better  organized  and  occupying  a  fixed 
territory;  (3)  coherent  aggregations  or  confederations  of  tribes, 
which  do  not  yet  form  municipalities  or  national  states,  because 
their  commercial,  intellectual,  and  industrial  development  is  not 
yet  sufficient.  Here  we  see  differences  in  the  degree  of  aggrega- 
tion rather  than  in  the  degree  of  differentiation ;  which  certainly 
is  not  the  same  thing.  Giddings  thereupon  divides  these  three 
classes  joined  together  into  two  groups,  according  as  the  societies 
are  matriarchal  or  patriarchal.  But  the  connection  between 
these  two  groups  is  not  at  all  clear,  either  as  to  their  essence  or 
division.  The  author  does  not  show  us  the  relation  of  this  last 
division  to  his  fundamental  rule,  nor  the  essential  significance  of 
the  distinction  between  matriarchal  and  patriarchal  societies. 

The  demotic  or  civilized  societies  only  form  a  single  branch  ^ 
of  which  the  evolution,  however,  is  divided  into  three  phases, 
which  differ  not  only  chronologically,  but  also  by  their  character- 
istics and  structure ;  ^  they  should  be  called  subclasses  rather 
than  phases.  The  first  includes  ancient  Egypt  and  Babylon ;  the 
second  was  not  altogether  complete  in  Greece,  while  Rome  was 
only  on  the  threshold  of  the  third,  to  which  the  modern  nations 
have  risen,  probably  those  of  Europe  (with  the  exception  of  those 
of  the  east  and  southeast)  and  their  derivatives.  The  first  phase 
is  marked  by  political  integration  and  the  common  organization 
of  the  central  government ;  it  is  the  political  period.  The  second, 
the  legal  period,  is  characterized  by  intellectual  and  personal 

»  Loc.  ciL,  p.  168. 

2  Loc.  ciL,  pp.  299-302.  Cf.  pp.  306,  309.  These  phases  are  named: 
military  and  religious,  liberal-legal,  economical-ethical. 


36  CRITERIA   OF  LEGAL  EVOLUTION  [Pabt  I. 

liberty,  by  the  constitutional  state,  the  presence  of  a  multitude  of 
inferior  associations,  by  the  profound  differentiation  which  the 
social  constitution  shows  in  its  details.  The  third  phase,  called 
industrial,  is  no  longer  either  military  or  political,  but  economical 
and  ethical.  Up  to  this  time,  no  existing  people  belongs  to  it. 
Neither  do  I  see  how  Greece  and  Rome,  with  their  slavery  dominat- 
ing their  social  life,  their  state  religion,  their  oscillation  between 
tyranny  and  oligarchy,  their  poverty  of  social  life  which  contrasts 
in  so  striking  a  manner  with  what  one  sees  in  the  Middle  Ages, 
supplies  the  above-described  conditions  of  the  second  phase.  In 
this  distribution,  Giddings  does  not  seem  to  apply  at  all  his  stand- 
ard of  differentiation  or  relationship;  his  point  of  view  is  here 
teleological  and  is  not  far  removed  from  that  of  the  moralist. 

Giddings,  then,  has  not  complied  with  the  conditions  which 
he  himself  has  recognized  as  necessary.^  His  contribution  to 
Spencer's  system  is  not  very  important.  Perhaps  he  will  later 
give  us  a  classification  less  hastily  made ;  ^  that  which  he  proposes 
to  us  now  does  not  help  us  much. 

3.  The  third  group  of  classifications,  to  which  we  now  come,  is 
distinguished  by  two  traits.  In  general,  their  authors  have  rather 
wished  to  show  successive  phases  of  human  evolution,  than  classes 
capable  of  coexistence  in  the  same  period  of  evolution.  But 
there  is  nothing  to  keep  us  from  correcting  this  main  defect,  which 
is  not  at  all  essential  in  their  divisions.  They  propose  a  series, 
often  incomplete,  of  phases  through  which  all  humanity  must 
uniformly  pass;  we  will  change  this  series  of  consecutive  terms 
into  coordinated  classes.  By  this  change,  their  propositions  will 
be  relieved  of  the  fundamental  error. 

(a)  A  traditional  distinction,  which  has  come  down  to  us  from 
antiquity,  is  based  on  the  various  phases  of  human  history  ac- 
cording to  the  means  preferably  employed  by  peoples  in  seeking 
their  subsistence.  Thus,  we  were^told  to  distinguish  the  following 
periods :  hunting  and  fishing,  cattle-raising,  farming,  and  manu- 
facture ;  because  all  people  were  supposed  to  have  passed  through 
these  stages.^    The  economist,  Liszt,  developed  this  conception,  and 

1  The  important  thing  is  to  make  classes  that  are  significant  and  that 
correspond  to  actual  stages  of  evolution  (p.  302).  What  is  found  here  to 
be  warned  against  is  rather  the  natural  classification,  with  one  word  more 
on  differentiation. 

2  Page  158. 

3  Barth,  loc.  cit.,  p.  255;  G.  de  Mortillet,  "Origin  de  la  chasse,  de  la 
peche  et  de  1' agriculture",  Vol.  I  (1890),  p.  147,  passim,  is  still  partial  to 
the  old  theory  of  three  phases. 


Chap.  I.]  A  CLASSIFICATION   OF  SOCIAL  TYPES  37 

added  several  other  phases  to  it :  after  agriculture,  he  distinguishes 
also  agriculture  connected  with  manufacture,  and  jSnally  agricul- 
ture connected  with  manufacture  and  commerce.^  I  have  already 
pointed  out  the  great  shortcoming  defect  of  all  these  schemes : 
they  claim  to  be  a  consecutive  and  universal  series,  which  is  evi- 
dently wrong.  An  important  example  is  the  well-known  fact  that 
many  peoples  have  never  passed  through  the  stage  of  shepherds,  for 
instance,  the  agricultural  peoples  of  ancient  America,  and  the  great 
civilizations  of  Central  America  and  Peru ;  for  this  simple  reason, 
that  in  those  places  there  were  no  animals  possessing  the  necessary 
qualities  for  this  kind  of  life,  before  the  arrival  of  Europeans. 
Another  objection  which  is  not  so  well  known  is  this :  the  in- 
ferior agriculturists  are  not  at  all  superior  to  the  hunters  or  fishers, 
and  almost  always  their  civilization  is  less  developed  than  that  of 
the  more  advanced  hunters  and  fishers.  It  is  very  possible  that 
the  superior  hunters  have  passed  through  a  preliminary  stage  of 
agriculture,  and  only  turned  again  to  hunting  and  fishing  after 
they  had  conquered  the  territory  which  lent  itself  primarily  to 
these  modes  of  subsistence.^ 

(6)  Hildebrand  ^  has  made  an  economic  division  of  humanity, 
based  on  the  internal  organization  of  economic  life,  or  the  manner 
in  which  the  products  are  distributed.  He  distinguishes  :  (1)  the 
economic  organization  marked  by  natural  exchange  ("Natural- 
wirtschaft ") ;  (2)  that  characterized  by  use  of  money  ("Geld- 
wirtschaft") ;  (3)  finally,  a  last  phase,  in  which  credit  dominates 
and  penetrates  into  economic  relations  ("Creditwirtschaft"). 
The  great  importance  of  this  division  cannot  be  ignored.  The 
transition  between  the  last  two  stages,  although  insensible  his- 
torically, is  particularly  great  in  principle.  Credit  supposes  a 
highly  developed  social  organization;  especially  is  there  a  great 
difference  if  one  looks  only  at  the  clearly  defined  periods  where 
one  or  the  other  form  is  really  dominant.  On  the  other  hand, 
one  might  remark  that,  for  instance,  credit  was  of  considerable 
importance  in  the  classical  world,  and  that  in  the  Middle  Ages 
bills  of  exchange  and  life  annuities  were  already  rather  well  known. 
******* 

But  the  division  of  Hildebrand  into  only  three  classes  seems  to 
us  rather  narrow ;  each  phase  contains  too  many  divergent  soci- 

^  Barth,  loc.  ciL,  p.  256. 

2  Gro8se,  "Die  formen  der  Familie  und  die  Formen  der  Wirtschaft" 
(1896),  p.  29. 

3  Hildebrand,  "Natural-  Geld-  und  Creditwirtschaft",  in  **  Jahrbucher 
fiir  Nationalokonomie  und  Statistik",  Vol.  II  (1864),  p.  4. 


38  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

eties  under  the  other  essential  relations.  Especially  the  second 
is  very  broad  :  a  certain  kind  of  money  was  employed  quite  early 
by  peoples  very  inferior  from  the  standpoint  of  general  culture.^ 
On  the  other  hand,  it  was  a  very  long  way  that  men  had  to  travel 
until  they  reached  the  point  where  credit  had  acquired  a  relatively 
important  influence  —  an  influence  which  perhaps  has  for  its 
characteristics  the  diffusion  of  business  corporations,  and  the  use 
of  checks  by  individuals,  practices  peculiar  to  Anglo-Saxon  coun- 
tries. Besides,  the  use  of  money  does  not  constitute  a  very  great 
social  difference  as  compared  with  the  exchange  in  nature ;  thus 
this  classification  is  not  of  great  use  to  sociology. 

(c)  Roscher,  the  well-known  champion  of  the  historical  method 
in  political  econom^^,  gives  us  another  division  of  economic  char- 
acteristics;  ^  he  distinguishes  household  economy  ("Hauswirt- 
schaft"),  the  economy  of  corporations  and  associations,  the 
economy  of  the  community,  of  the  state,  national  economy  and 
the  economy  of  humanity,  of  which  we  only  perceive  as  yet  the 
first  signs.  But  Roscher  himself  does  not  develop  this  classifica- 
tion, which  in  his  work  has  rather  an  analytical  than  historical 
or  geographical  significance. 

(d)  Much  deeper  in  its  insight  is  the  view  expressed  by  Karl 
Biicher,  the  well-known  professor  of  the  University  of  Leipzig. 
According  to  him,  the  first  phase  of  the  economic  life  of  humanity 
was  characterized  by  the  individual  search  for  sustenance;  the 
individual  then  was  only  occupied  with  himself ;  man  and  woman 
had  separate  households;  the  child  was  neglected,  owing  to  the 
formidable  egoism  of  the  parents.^  Biicher  imagines  that  this 
analysis  is  based  upon  the  observations  of  ethnographers.^  I 
doubt  it.  As  to  the  terrible  egoism  toward  children,  I  believe 
that  I  have  demolished  that  attractive  theory.^  Biicher's  second 
phase,  which  has  only  been  incompletely  attained  by  the  savage 
peoples,  but  which  the  European  peoples  had  already  traversed 

1  Schurtz,  "Grundriss  einer  Entstehungsgeschichte  des  Geldes"  (1898), 
passim.  I  do  not  believe  that  Hildebrand  had  reason  to  define  money  as 
coined  precious  metals  exclusively  (Loc.  cit.,  p.  4),  and  to  range  the 
other  species  of  money  in  the  natural  exchange  ("Tauschwirtschaft", 
p.  15).  Wherever  one  favorite  product  acts  as  a  medium  of  exchange 
and  as  standard  of  value  and  of  price,  it  is  money. 

2  M.  Roscher,  "Grundlagen  der  Nationalokonomie "  (1880),  pp.  24-25. 

3  K.  Biicher,  "Die  Entstehung  der  Volkswirthschaf t "  (1808),  pp.  2-31. 
^  Loc.  cit.,  p.  31. 

5  See  my  article,  "tjber  das  Verhaltnis  zwischen  Eltern  und  Kindern 
bei  den  Naturvolkern",  in  "Zeitschrift  fiir  Social wissenschaft",  1898,  and 
the  corresponding  paragraph  in  my  "Erste  Entwicklung  der  Strafe", 
Vol.  II  (1894),  pp.  179-253. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  39 

when  history  began/  is  that  of  the  "  geschlossene  Hauswirtschaft ", 
where  each  family,  in  the  largest  sense,  formed  a  household  alto- 
gether separated  from  those  of  others.  Each  household  provided 
for  all  its  own  needs ;  there  was  no  division  of  labor,  but  the  house- 
hold itself  included  enough  persons  to  develop  in  its  midst  a  some- 
what extensive  division  of  labor.^  I  have  already  shown  Biicher's 
conception,  according  to  which  all  Greek  afid  Roman  antiquity 
has  not  risen  above  this  phase.^  However  great  my  esteem 
for  the  authority  of  Biicher  may  be,  it  is  impossible  not  to 
agree  with  his  adversaries.^  His  third  phase  would  be  that  of 
communal  economy  ("Stadtwirtschaft")  to  which  our  Middle 
Age  would  belong.  Here  the  economic  influences  are  limited  to 
the  cities ;  they,  produce  only  for  the  demand ;  products  pass 
directly  from  the  producer  to  the  consumer.  Finally,  the  fourth 
and  last  phase  is  that  of  national  economy  ("Volkswirtschaft") 
where  the  products  pass  through  many  hands  before  coming  to 
the  consumer. 

In  reading  the  very  interesting  characterization  which  Biicher 
gives  us  of  these  four  phases,  one  is  struck  by  their  general  impor- 
tance.^ The  author  himself  is  sure  of  it.  Certainly,  the  funda- 
mental traits  of  economic  organization  of  a  society  must  have  a 
deep  and  general  influence  upon  its  constitution  and  all  its  vital 
manifestations.  Biicher  is  perfectly  right  in  saying  that  the  eth- 
nologists have  too  long  neglected  this  important  point.^  How- 
ever, this  author's  classification  does  not  altogether  satisfy  us; 
at  least,  it  is  not  sufficient  for  the  sociological  aim  which  we  pursue. 
In  the  first  place,  this  reduction  of  all  human  societies  into  four 
classes,  of  which  the  first  class  has  hardly  a  representative  among 
known  peoples,  seems  to  me  troublesome.  The  second  class 
includes  a  multitude  of  societies,  altogether  different  when  looked 
at  from  any  other  point  of  view;  while  the  third  class  seems  to 
me  to  be  either  a  little  schematic  or  else  very  rarely  represented. 
In  all  times  commerce  has  played  a  preponderant  role,  and  has 
bound  people  together.  That  is  as  true  of  savage  tribes,  even 
those  who  live  in  the  most  inhospitable  regions  such  as  the  arctic 
regions,  as  of  the  societies  of  the  Middle  Ages.     We  must  guard 

^  hoc.  cit.,  p.  41.  2  Lqc,  cit.,  pp.  32-47,  58  seq. 

3  Loc.  cit.,  pp.  65  seq. 

*  E.  Meyer,  *'Die  wirtschaftliche  Entwicklung  des  Alterthums" 
(1895),  p.  6  et  passim,  and  Cunningham,  "Western  Civilization  in  its 
Economic  Aspects"  (1895),  pp.  105,  109,  112,  183  seq.,  187. 

^  The  latter  phase  would  be  possible  only  in  a  modern  state. 

«  He  could  have  found  much  information  in  the  great  monographic 
works  of  Le  Play  and  his  School. 


40  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

against  this  tendency  to  schematize.^  Another  objection  to  this 
division  is  that  in  the  third  class  attention  is  paid  only  to  the 
system  of  labor  in  the  cities  and  all  the  rest  is  neglected.  Neither 
is  it  certain  that  this  form  of  organization  carries  with  it  a  great 
variety  of  secondary  characteristics.  As  for  the  fourth  class, 
there  is  a  lurking  difficulty  in  the  fact  that  our  international  econ- 
omy ("Weltwirtschaft")  supposes  a  combination  of  societies 
which  themselves  are  found  in  the  second  class.  Finally,  the  people 
of  the  colonies  would  belong  variably  to  either  the  second  or  fourth 
class.  I  do  not  think  that  Mr.  Biicher's  classification  can  satisfy 
our  needs. 

{e)  Grosse  ^  has  made  a  classification  upon  a  more  differentiated 
economic  basis.  His  aim  was  to  look  for  the  different  forms  of 
family  which  are  parallel  to  the  different  economic  constitutions 
of  society.  He  guards  against  the  tendency  to  build  a  consecu- 
tive series;  he  knows  that  the  second  class  does  not  necessarily 
precede  the  third,  and  that  this  is  not  inferior  in  all  aspects  to  the 
fourth.  His  classes  are  five  in  number :  inferior  hunters  and 
fishers,  superior  hunters  and  fishers,  nomadic  shepherds,  inferior 
farmers,  and  superior  farmers.  Almost  always  the  economic 
life  of  a  people  does  not  belong  exclusively  to  one  of  these  classes, 
but  each  society  belongs  to  one  or  the  other  according  to  the  form 
of  subsistence  which  is  preponderant  with  each.     The  idea  is  right. 

Between  the  two  types  of  hunting  peoples,  the  difference  is 
rather  quantitative  than  qualitative ;  ^  the  results  of  the  hunt  of 
the  superior  hunters  is  much  richer  than  that  of  the  others,  thanks 
to  the  perfected  arms  which  they  use,  and  especially  to  the  greater 
fertility  of  their  surroundings.  But  this  distinction  does  not  seem 
very  fundamental.  If  it  is  valid,  one  ought  to  generalize  and 
distinguish  everywhere  the  peoples  which  inhabit  rich  soil,  and 
those  which  live  amidst  poor  surroundings.  The  inferior  farmers 
differ  from  the  superior  farmers  in  this  trait :  that  among  the 
first  each  capable  individual  applies  himself  to  farming,  while 
among  the  latter  a  good  part  of  their  economic  forces  is  reserved  for 
other  industries.^  Grosse  has  not  distinguished  simple  collectors 
("Sammler")  from  hunters;  however,  these  first,  which  are 
characterized  by  the  absence  of  hunting  weapons,  ought  properly 

1  Bucher  (p.  81)  answers  the  objection. 

2  E.  Grosse,  "Die  Formen  der  Familie  und  die  Pormen  der  Wirthschaft " 
(1896),  pp.  7,  9.  On  the  other  hand,  the  classification  followed  by  Hilde- 
brand  in  the  first  volume  of  his  important  book,  "  Recht  und  Sitte  auf  den 
verschiedenen  wirtschaftlichen  Kulturstuf en "  (1896),  is  very  simple;  he 
only  distinguishes :  hunters  and  fishermen,  shepherds,  farmers. 

3  Loc.  ciL,  p.  27.  *  Loc.  ciL,  p.  28. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  41 

to  take  the  place  of  the  inferior  hunters,  who  should  not  be  sep- 
arated from  other  hunters.  If  one  is  looking  for  essential  traits, 
there  is  more  reason  to  distinguish  between  fishers  than  hunters, 
according  to  whether  they  are  nomadic  or  settled ;  for  the  possi- 
bility of  establishing  a  fixed  home  supposes  that  their  technique 
has  already  reached  a  high  degree  of  development.  As  a  matter 
of  fact  there  are  very  few  fishermen  who  are  not  altogether 
settled. 

Grosse  has  not  made  a  special  class  of  farmer-hunters  such  as 
Dargun  has.^  These  occupy  themselves  with  agriculture  without 
being  settled.  They  change  fields  every  time  they  change  their 
settlement,  giving  no  care  to  their  lands  or  crops,  and  devoting 
themselves  to  hunting  and  fishing  in  order  to  complete  their  means 
of  sustenance;  they  are  found  particularly  in  South  America. 
According  to  our  author,  each  person  among  the  inferior  farmers 
devotes  himself  to  the  cultivation  of  the  fields;  but  among  the 
peoples  where  farming  is  least  developed,  things  are  not  arranged 
that  way.  The  women,  and  later  the  slaves,  are  alone  busy  with 
this  kind  of  work,  while  free  man  hunts,  fishes,  trades,  fights,  or 
does  nothing  at  all.  It  is  only  in  the  more  advanced  agricultural 
phases  that  an  entire  community  devotes  itself  to  the  work  of  the 
fields.  And  then  nearly  always  it  develops  a  certain  branch  of 
the  work  and  with  that  begins  a  manufacture — blacksmiths, 
armorers,  builders  of  ships  and  houses,  etc.  Thus,  Grosse's  two 
classes  do  not  seem  to  me  to  be  those  which  most  conform  to  reality. 

The  last  class,  that  of  the  superior  farmers,  is  too  large;  it 
includes  the  semi-civilized  peoples  of  Asia  and  anpient  America, 
two-thirds  of  our  Middle  Ages,  and  all  modern  societies.  As  might 
be  expected  from  an  ethnologist,  Grosse  has  not  tried  to  analyse 
the  various  phases  of  societies  which  are  not  savage;  he  mixes 
them  all  into  a  single,  heterogeneous,  and  deformed  class.^  His 
classification,  in  spite  of  its  great  merits,  is  not  satisfactory. 

(/)  Hahn,  in  his  very  useful  book,  has  given  us  some  valuable 
information  upon  the  various  forms  of  the  economic  life  of  the 
peoples.  He  takes  notice,  in  the  first  place,  of  the  hypothetical 
phase  of  pure  collectors  ("Sammler"))  who  lived  on  vegetable 
products  and  the  smaH  animals  which  were  about  them,  without 

*  Lothar  Dargun,  "Ursprung  und  Entwicklungsgeschichte  des  Eigeu- 
thums",  in  "Zeitschrift  fur  vergleichende  Rechtswirtschaft",  V  (1884), 
pp.  38  seq. 

2  Naturally,  his  book  clearly  shows  the  consequences  of  his  defects; 
the  interesting  changes  which  the  family  has  undergone  in  the  last  phases 
of  social  evolution  are  all  neglected  by  him ;  he  has  likewise  ignored  the 
curious  particulars  which  characterize  the  family  of  the  hunter-farmers. 


42  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I, 

using  any  instruments  or  weapons  whatsoever.^  His  second  class 
consists  of  hunters  and  fishermen,  who  are  either  wandering, 
settled,  or  owners  of  domestic  animals  (for  instance,  dogs).  The 
third  class  consists  of  primitive  farmers,  who  made  use  of  only 
one  instrument,  the  pick-ax  ("Hackbau") ;  this  form  of  culture 
is  very  extensive;  it  is  found  especially  in  South  America,  in  a 
part  of  Africa,  and  in  the  Indonesian  islands.^  The  fourth  class 
is  rather  a  subdivision  of  the  third;  it  might  be  called  farming 
with  a  pick-ax,  hastened  and  centralized  by  European  culture 
and  energy  ("Plantagenbau")-  It  is  only  found  in  several  parts 
of  America  and  India,  Sumatra,  and  Java;  its  instrument  was 
especially  the  negro  slave.^  Garden  culture,  horticulture  ("Gar- 
tenbau")  is  the  most  intensive  of  all  forms  of  agriculture;  it  is 
the  highest  degree  of  the  exploitation  of  the  soil.  It  makes  no 
use  of  any  beasts,  but  uses  human  refuse,  and  is  lacking  in  many 
human  forces.  It  is  found  especially  in  China  and  Japan. ^  The 
sixth  class  is  formed  by  the  races  with  whom  breeding  of  cattle 
forms  the  principal  means  of  human  livelihood.  Hahn  sketches 
hastily  for  us  how  this  method  of  making  a  livelihood  exerts  a 
deep  influence  on  the  social  life,  the  history,  and  the  character  of 
the  peoples  who  are  devoted  to  it.^  The  seventh  and  last  class 
consists  of  agriculture  properly  so-called,  characterized  by  the 
prevalence  of  cereals,  the  use  of  cattle  and  the  plow;  it  is  found 
among  the  civilized  races,  in  Persia,  in  English  India,  and  in  several 
other  European  colonies.^  TIaliii  also  supposes  that  the  peoples 
who  possess  this  method  of  cultivating  the  soil  are  united  by  a 
communal  civilization,  although  they  belong  to  four  linguistic 
groups.  Indeed,  only  a  small  number  of  religious  ideas  dominate 
this  enormous  empire ;  ^  which  clearly  proves  the  historical  con- 
nection between  the  varied  parts  of  which  it  is  composed.  A 
special  division  is  formed  by  irrigation  farming,  of  which  Egypt 
and  ancient  Babylon  furnish  examples ;  ^  Hahn  predicts  for  this 
mode  of  culture  a  great  future  even  in  civilized  countries.^ 

Our  author  has  based  his  economic  classification  exclusively 
on  the  method  in  which  the  first  food  stuff  is  produced ;  he  neglects 

all  the  rest,  even  the  cultivation  of  other  important  stuffs,  such  as 

• 

1  E.  Hahn,  "Die  Hausthiere"  (1896),  p.  385. 

2  Loc.  cit.,  pp.  388  seq.  ^  Loc.  cit.,  pp.  402  seq. 
*  Loc.  cit.,  pp.  402  seq.  ^  Loc.  cit.,  pp.  407  seq. 

®  Loc.  cit.,  pp.  410  seq.  For  the  dispersion  of  these  forms  of  culture 
consult  especially  the  card  at  the  end  of  the  volume. 

7  Loc.  cit.,  pp.  415-416.  »  j^qc.  cit.,  p.  417. 

^  Hahn  gives  a  very  interesting  application  of  these  distinctions  in 
the  economic  geography  which  forms  his  volume,  pp.  423-547. 


Chap.  I.]  '        A   CLASSIFICATION    OF  SOCIAL  TYPES  43 

clothing,  mining  ores,  use  of  wood,  water,  etc.  Moreover,  he  is 
not  certain  that  the  superior  societies  are  characterized  by  their 
method  of  farming.  Will  the  gradual  turning  of  a  civilized  society 
towards  horticulture  ("Gartenbau")  make  so  much  difference? 
The  evolution  towards  the  big  industry,  so  important  in  modern 
manufacturing  societies,  with  its  enormous  increased  production, 
with  its  tendency  to  concentrate  in  the  cities,  with  its  need  of 
markets,  with  the  progress  in  science  which  occurs  at  the  same  time, 
etc.,  nothing  of  all  that  is  touched  by  Hahn's  division.  That, 
however,  is  what  forms  the  profound  difference  between  us  and 
the  eighteenth  century.  On  the  other  hand,  in  the  inferior  classes, 
the  hunter-farmers  are  not  taken  into  consideration.  But  this 
classification  has  an  advantage  in  that  it  admits  easily  of  sub- 
divisions according  to  the  shades  and  combinations  of  economic 
characteristics. 

4.  The  economic  classifications  of  societies  which  we  have  just 
gone  over,  consider  the  whole  of  economic  life  from  one  side  only. 
Some  do  not  take  into  consideration  organization  of  economy 
("Wirtschaft"),  such  as  Hildebrand  and  Biicher.  Others  build 
upon  the  predominant  method  of  the  principal  industry  (Grosse, 
Hahn).  I  do  not  see  the  necessity  of  this  artificial  limitation.  It 
is  necessary  to  enlarge  the  framework.  All  the  parts  which  char- 
acterize the  economic  foundations  of  the  different  societies  must 
be  considered,  if  one  wishes  to  get  from  them  a  principle  of  division. 
Later  on,  we  will  take  up  the  theories  which  go  farther  in  this  direc- 
tion than  the  preceding. 

The  group  of  classifications  which  next  claims  our  attention 
now  is  distinguished  by  the  greater  complexity  which  it  introduces 
into  our  division  of  societies.  As  for  the  rest,  they  also  may  be 
applied  primarily  to  the  economic  basis  of  civilization. 

(a)  The  first  savant  of  this  group  is  Le  Play,  the  peculiar  sociolo- 
gist who  occupies  a  place  apart  in  our  science.  It  is  regrettable 
that  his  work  and  that  of  his  school  is  so  little  studied  by  the 
savants  of  the  other  schools.  Aside  from  much  childishness  and 
many  eccentricities,  one  finds  conscientious  study  of  important 
facts,  carried  on  with  a  care  which  is  found  nowhere  else,  while 
the  disciples  of  Le  Play  often  give  us  general  ideas,  interesting 
hypotheses,  which  no  earnest  sociologist  dares  ignore.^  Unfor- 
tunately, the  savants  of  that  school  rarely  measure  up  to  the 

^  See  on  the  work  of  Le  Play  in  p:eneral  the  article  of  A.  von  Wercksten, 
"Le  Play",  in  "Jahrbiicher  fiir  Gesetzgebung,  Verwaltung  und  Volks- 
wirtschaft",  1894,  and  Vignes,  "La  science  sociale  d'aprSs  les  principes 
de  Le  Play  et  de  ses  continuateurs  ",  2  vols.,  1897. 


44  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

height  of  modern  science ;  because  of  that,  their  theoretical  work, 
outside  of  the  monographs  which  are  the  foundation  of  it,  often 
make  an  impression  of  dilettantism. 

That  which  characterizes  Le  Play  himself,  even  more  than  his 
school,  is  that  he  pays  particular  attention  to  the  basis  of  society 
—  the  inferior  classes,  —  and  not  to  the  summits,  the  esthetic 
and  intellectual  creations  of  exceptional  natures.  In  examining 
the  former,  he  makes  distinctions  between  prosperous  and 
wretched  peoples,  and  between  simple  and  complicated  races.^ 

The  simple  races  live  only  on  the  natural  products  of  their 
own  lands,  and  on  water  products;  all  the  members  are  almost 
equal.  Among  them  the  shepherds  have  the  patriarchal  family, 
the  fishermen  the  single-head  family  ("famille  souche")^  and  the 
hunter  the  unstable  family.  The  complicated  and  agglomerated 
races  make  use  of  all  natural  forces  to  sustain  the  life  of  their 
enormous  and  compact  masses.  With  them,  the  family  undergoes 
profound  changes,  the  patriarchal  family  becoming  the  single- 
head  family  ("famille  souche"),  sometimes  even  unstable.  The 
families  of  these  societies  are  very  unequal  in  wealth  and  social 
authority,^  and  Le  Play  divides  the  societies  themselves  into  stable, 
uncertain,  and  disorganized,  according  to  the  type  of  family  which 
predominates. 

This  type  may  be  either  patriarchal,  single-head  ("souche"), 
or  unstable.  In  the  first,  the  domestic  group  is  a  strong  unity, 
under  the  permanent  authority  of  the  head  of  a  family,  who  keeps 
around  him  even  his  adult  sons  and  daughters.  This  type  is  still 
sometimes  found  among  agglomerated  populations  with  a  com- 
plicated life,  for  instance,  among  the  German  peasants  in  Le  Play's 
time.^  While  the  simple  societies  remain  stable  as  long  as  the 
family  is  dominated  by  the  decalogue,  the  complex  and  literate 
societies,  into  which  the  influence  of  the  cities  has  penetrated, 
can  only  keep  the  same  stability  ^  with  the  help  of  religion  and 
government.  A  more  comfortable  life,  and  especially  wealth, 
lead  to  disorganization.^  The  stable  family  can  be  patriarchal,  as 
with  the  shepherds,  or  single-head  ("souche"),  as  with  the  fisher- 
men.^ These  latter  are  obliged  to  settle  down  by  necessity,  as 
well  as  by  the  advantages  of  their  profession,  and  they  turn  easily 

1  "Ouvriers  Europeens",  I  (1879),  pp.  70,  210,  212. 

2  hoc.  ciL,  pp.  381-384. 

3  Loc.  cit.,  pp.  138,  162;  Volumes  II,  III,  IV,  of  the  "Ouvriers  Euro- 
peens" are  devoted  to  stable  populations,  V  to  disturbed  populations, 
and  VI  to  disorganized  populations. 

4  Loc.  cit.,  Vol.  V,  p.  xi.  ^  Loc.  ciL,  p.  xviii. 
*  Loc.  cit.,  Vol.  VI,  pp.  XV  seq. 


Chap.  I.J  A   CLASSIFICATION  OF  SOCIAL  TYPES  45 

to  agriculture;  their  ideal  type  is  to  be  found  in  Scandinavia.^ 
The  stable  form  of  family  rests  on  the  institution  of  inheritance : 
it  is  possible  in  all  times,  all  industries,  and  all  localities.  The 
single-head  ("souche")  family  is  distinguished  by  the  complete 
transmission  of  the  patrimony  to  a  single  heir,  which  obliges  the 
other  children  to  earn  their  bread  in  an  independent  manner,  and 
to  migrate  in  case  of  need.^ 

It  is  evident  that  Le  Play's  division  only  concerns  one  phase 
of  things ;  therefore,  it  is  highly  artificial.  It  cannot  be  called 
superficial;  rather  it  is  fantastic.  Fortunately,  it  has  been 
corrected  and  completed  by  the  followers  of  the  master,  the  writers 
of  the  "Science  Sociale."  These  authors  distinguish  societies 
according  to  three  characteristic  traits ;  in  the  first  place,  accord- 
ing to  the  predominant  type  of  family,  then  according  to  the  prin- 
cipal mode  of  existence,  and  finally  according  to  the  ethnographical 
grouping.  It  is  regrettable  that  there  is  not  an  article  in  the 
entire  "Science  Sociale"  in  which  these  various  principles  of 
division  are  arranged  harmoniously. 

Demolins  offers  an  important  correction  to  the  theory  of  the 
three  types  of  family.  He  adds  a  fourth :  the  false  single-head 
("souche")  family,  which  is  rather  the  patriarchal  family  placed 
in  poor  surroundings;  such  a  family  remains  always  the  center 
of  gravity  to  the  children,  who  return  to  it  as  soon  as  they  have 
earned  a  little  competency  in  the  city.^  In  his  "Geographic 
Socialede  la  France",  the  same  author  paints  for  us  in  an  inter- 
esting and  suggestive  manner  the  deep  influence  of  environment 
and  the  mode  of  subsistence  upon  the  entire  social  life,  and  es- 
pecially on  the  family.  The  best  articles  in  the  review  cited  apply 
the  same  method  to  the  different  peoples,^  who  are  classified 
according  to  their  ethnical  descent  and  the  nature  of  their  habita- 
tions ;  these  factors  indeed  determine  the  character  of  the  sur- 
roundings, upon  which  depends  the  mode  of  subsistence,  which 
in  its  turn  decides  finally  the  character  of  all  the  institutions  of 

'  hoc.  cit..  Vol.  VI,  pp.  XX,  xxi.  f  Loc.  cit.,  p.  xxii. 

3  Demolins,  "L'fitat  actuel  de  la  science  sociale",  in  "Science  Sociale", 
XV,  pp.  12,  13,  14,  18. 

*  For  instance  Demolins,  "Les  trois  soci^t^s  k  formation  communau- 
taire  de  famille",  Sc.  S.  XV,  pp.  165  seq. ;  p.  167.  The  societies  of  the 
globe  are  divided  into  societies  of  communitary  formation  and  societies 
of  particularistic  formation.  The  community  can  govern  either  in  the 
family  only,  in  the  family  and  state,  or  in  the  state  alone  (p.  168).  The 
former  are  to  be  found  only  on  the  steppes  with  the  shepherds ;  they  are 
divided  into  three  types :  those  of  the  rich  prairies  of  Asia,  those  of  the 
Polar  Tundras,  and  those  of  the  poor  deserts  of  Arabia  and  of  the  Sahara 
(p.  173). 


46  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

the  people,  and  the  role  it  plays  in  history.  It  is  strange  that 
to  these  followers  of  Le  Play,  so  religious  and  conservative,  is  owed 
the  most  systematic  application  that  is  known  of  the  principles 
of  Buckle  and  Taine. 

Vignes,  in  his  book  upon  the  "Science  Sociale  d'apres  I'ecole 
de  Le  Play  ",  proposes  to  us  the  following  classification.  First 
simple  societies  :  the  hunters  in  the  forest ;  second  form  of  simple 
society :  the  shepherds  in  the  prairies,  subdivided  according  to 
the  nature  of  their  surroundings ;  third  form  of  simple  society : 
the  fishermen  along  the  edge  of  the  sea  and  fishing  streams.  The 
classification  of  the  complex  societies  is  made  according  to  the 
physiognomy  of  the  families  which  compose  it.  The  first  class 
is  formed  by  the  societies-communities  of  family  and  state;  it 
is  to  be  found  in  the  Orient,  outside  of  simple  societies.  The 
second  class  is  divided  in  two,  according  to  the  preponderant  type 
of  family:  unstable  or  single-head  ("souche")-  The  complicated 
peoples  are  also  distinguished  one  from  the  other  according  as 
they  are  descended  of  shepherds,  hunters,  or  fishermen.  While 
Le  Play  distinguished  types  of  family  according  to  cohabitation 
and  hereditary  transmission,  the  criterion  of  his  followers  of  the 
"science  sociale"  has  become  the  nature  of  the  training  given  to 
children.^ 

This  short  resume  perhaps  cannot  convey  to  the  reader  the 
interest  which  this  classification  presents  —  a  classification  which 
has  the  great  merit  of  having  been  applied  and  put  to  practice; 
it  is  not  a  theoretical  division  like  so  many  others  which  we  have 
examined.  Criticism  is  not  very  easy  in  the  face  of  such  work. 
The  weak  side  of  this  system  is  certainly  that  which  concerns  the 
superior  peoples,  those  of  Europe  of  the  Middle  Ages  and  of  modern 
times,  which  are  only  divided  according  to  their  two  or  three 
types  of  family.  The  Middle  Age  is  not  characterized  at  all; 
modern  civilization  is  characterized  principally  by  the  unstable 
or  single-head  ("souche")  family.  That  is  very  little.  These 
forms  of  family  are  also  found  among  primitive  hunters  and  fishers. 
Too  many  essential  differences  are  ignored.  The  Latin  and  Anglo- 
Saxon  countries  possess  entirely  different  forms  of  family,  and 
yet  they  present  numerous  similarities. 

They  have  certainly  more  resemblance  to  each  other  than  they 

have  to  the  primitive  peoples  with  which  they  share  in  common 

1  Vignes,  loc.  cit.,  I,  pp.  96-220;  Demolins,  "Les  societes  issues  des 
Deserts",  Sc.  S.  XV,  pp.  315  seq. ;  R.  Pinot,  "La  classification  des  especes 
de  la  famille",  Sc.  S.  XVII,  pp.  51  seq.;  P.  De  Rousiers,  "Les  Populations 
circumpolaires",  Sc.  S.  VI,  pp.  221  seq. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCL\L  TYPES  47 

the  same  forms  of  family.  That  this  preponderant  importance 
is  given  to  a  single  factor  seems  after  all  to  be  due  to  an  attitude 
of  mind  towards  social  facts  which  is  more  that  of  the  moralist 
than  of  the  scientist.  In  the  meantime,  however,  how  have  the 
at  least  solid  distinctions  of  Le  Play  evaporated  under  the  hands 
of  his  followers,  who  draw  nearer  to  modern  science,  but  away 
from  Le  Play !  I  have  already  remarked  that  these  authors  have 
in  effect  not  evolved  a  harmonious  system  of  these  various  divi- 
sions.    The  final  criticism  must  w^ait  until  then. 

(h)  The  celebrated  American  ethnologist,  Lewis  H.  Morgan, 
has  given  us  a  classification  of  societies  ^  which  has  had  the  singular 
good  fortune  of  becoming  well-known,  because  it  has  been  adopted 
by  the  Marxist  school. 

Morgan  holds  the  idea  that  all  civilized  people  have  passed  through 
two  successive  stages  of  savagery  and  barbarism.  The  road  of 
humanity  has  been  marked  on  one  side  by  inventions  and  dis- 
coveries, and  on  the  other  by  the  evolution  of  forms  of  family; 
by  recognizing  these  three  symptoms,  we  shall  be  able  even  to 
determine  the  principal  phases  of  human  evolution.  Leaving 
aside  that  which  concerns  inventions  and  discoveries,  the  progress 
of  human  kind  has  particularly  manifested  itself  in  seven  direc- 
tions :  livelihood,  organization  of  society,  language,  family 
religion,  family  life,  architecture,  and  ownership.^  (It  is  obvious 
that  the  list  of  ]\Iorgan  is  only  approximate;  he  forgets,  among 
other  things,  science,  morals,  and  art.) 

The  two  principal  phases  of  the  organization  of  society  are 
marked  by  the  tribe  (gens),  of  w^hich  the  nation  is  the  highest 
form,  and  by  the  state,  which  commences  with  the  city.^  These 
two  forms  mark  the  difference  between  primitive  and  modern  life. 
But  all  peoples  must  have  traversed  the  same  or  nearly  the  same 
road,  because  the  human  brain  is  the  same  with  all  races.  The 
identity  of  historical  results  with  different  peoples  is  also  caused 
by  the  fact  that  the  experiences  of  barbarism  and  civilization  are 
only  the  development  of  the  conceptions  of  savagery. 

As  to  the  phases  of  civilization,  Morgan  points  out  that  the 
distinction  of  the  archaeologists  between  the  stone,  bronze,  arid 
iron  periods  will  not  suffice.     It  is  probable  that  in  the  future, 

1  This  classification  is  treated  by  Morgan  in  his  "Ancient  Society" 
(1877) ;  I  regret  that  I  possess  only  the  German  translation  of  this  ex- 
haustive work;  I  cite  from  this  latter  "Die  Urgesellschaft,  iibertragen 
von  Eichoff  unci  Kautsky  "  (1891).  A  very  short  resume  is  given  by 
Morgan  in  his  "Houses  and  House-Life  of  the  Aborigines"  (1881),  pp.  4,  5. 

2  "Urgesellschaft",  pp.  4,  5.  '  Loc.  cit.,  p.  6. 


48  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

by  reason  of  the  predominant  influence  which  they  exercise  on 
the  Ufe  of  humanity,  the  inventions  aftecting  the  art  of  subsistence 
furnish  the  best  foundation  for  this  division.  Hitherto,  the  his- 
tory of  all  these  inventions  is  not  well  enough  known ;  but  in  the 
meantime,  we  must  build  our  conclusions  on  those  of  which  we 
do  know  something ;  we  shall  see  that  each  of  these  implies  another 
culture,  represents  a  kind  of  life  peculiar  to  it.  Morgan  believes 
it  very  possible  that  he  will  find  some  exceptions  in  the  applica- 
tion of  this  test;  but  that i does  not  change  the  fact  that  in  that 
way  all  the  principal  peoples  can  be  divided  into  classes,  accord- 
ing to  their  progress  in  civilization.  He  distinguishes  three  periods 
of  savagery  and  three  of  barbarism.  The  first  period  of  savagery 
begins  with  the  infancy  of  humanity  and  ends  with  the  use  of  fish 
and  fire;  man  fed  himself  in  the  beginning  on  fruits  and  nuts. 
There  is  no  example  of  it  which  has  come  down  to  the  historical 
period.  The  second  period  of  savagery  begins  with  the  use  of 
fish  and  fire  and  ends  with  the  invention  of  the  bow  and  arrow; 
men  spread  over  the  earth;  the  greater  part  of  Australians  and 
Polynesians  belonged  therein  when  they  were  discovered  by  Euro- 
peans. The  third  period  of  savagery  ends  with  the  invention  of 
pottery.  It  is  at  this  stage  that  the  Athapascan  tribes  of  the  Hud- 
son country,  those  of  the  Columbia  river,  and  some  tribes  along 
the  seacoast  of  North  and  South  America  found  themselves  when 
they  first  began  to  be  observed. 

The  threshold  of  barbarism,  Morgan's  next  stage,  is  marked  by 
the  use  of  pottery,  although  such  a  sign  is  always  rather  arbi- 
trarily chosen;  it  closed  with  the  invention  of  phonetic  writing. 
The  first  period  of  barbarism  finishes  in  America  with  farming  by 
irrigation,  and  the  use  of  adobe  (bricks  dried  by  the  sun),  and  in 
the  ancient  world,  with  the  raising  of  domestic  animals.  The 
Indians  to  the  west  of  the  Missouri  belonged  to  that  group.  The 
second  period  of  barbarism  ended  with  the  invention  of  the  art 
of  melting  iron  ore.  The  Indians  of  the  villages  in  New  Mexico 
and  Central  America  form  part  of  this  class,  as  well  as  the  old 
Bretons.  These  latter,  it  is  true,  knew  the  arts  of  iron;  but  it 
was  the  proximity  of  more  civilized  nations  which  lifted  them  in 
these  arts  above  the  proper  level  of  their  social  organization.  The 
highest  period  of  barbarism  ends  with  the  invention  of  phonetic 
writing  and  the  use  of  this  writing  for  literary  purposes.  To 
this  period  belong  the  Greeks  of  Homer,  the  Italian  tribes  shortly 
before  the  foundation  of  Rome,  and  the  Germans  in  the  time  of 
Caesar. 


Chap.  I.J  A  CLASSIFICATION   OF  SOCIAL  TYPES  49 

Here  commences  Morgan's  last  stage,  civilization,  with  phonetic 
writing  (in  which  can  be  included  the  hieroglyphic  writing  on 
stone) .  The  advanced  periods  of  humanity  are  attended  by  a  greater 
variety  of  means  of  sustenance ;  otherwise  the  dispersion  of  men 
and  the  formation  of  larger  nations  would  have  been  impossible. 
From  this  point  of  view  there  can  be  distinguished  subsistence 
by  means  of  fruit  and  roots  cultivated  upon  a  limited  territory; 
nourishment  by  fishing,  which  already  made  a  larger  dispersion 
possible,  while  hunting  became  more  advantageous  because  of 
the  invention  of  improved  weapons.  These  two  modes  of  sub- 
sistence date  back  to  savagery.  The  period  of  barbarism  gives 
rise  to  three  others :  primitive  agriculture,  breeding  of  cattle  in- 
tended to  supply  the  animal  food  and  milk  which  America  lacked, 
and  finally  agriculture,  properly  so-called,  supplying  unlimited 
food.     With  this  latter,  the  concentration  of  man  becomes  possible. 

The  different  periods  of  human  evolution  are  attended  by  dif- 
ferent forms  of  family.  Morgan  distinguishes  five  principal 
forms.  Of  the  first,  in  which  brothers  and  sisters  intermarry, 
there  are  only  traces;  the  second  ("punalua")  had  for  its  char- 
acteristic the  usage  by  which  many  brothers  had  many  sisters 
in  common.  These  two  types  belong  to  savagery.  The  syn- 
diasmic  family  is  one  in  which  the  woman  is  married  to  a  single 
man,  while  the  man  is  free.  The  two  others  are  the  patriarchal 
family,  which  is  often  polygamous,  and  the  monogamous  family ; 
the  latter,  in  particular,  belongs  to  civilization.^  The  last  two 
series,  kinds  of  subsistence  and  types  of  family,  are  only  corol- 
laries of  the  true  classification  which  is  based  upon  special  inven- 
tions, and  these  are  only  contingent  corollaries  which  do  not 
ordinarily  accompany  the  various  phases  of  the  first  series.  So 
we  can  ignore  them  in  considering  Morgan's  proposed  classifica- 
tion. 

The  first  remark  which  occurs  to  us  is  that  after  all  Morgan 
appears  to  be  more  of  an  ethnologist,  in  a  strict  sense,  than  an 
historian  of  human  civilization.  To  tell  the  truth,  he  has  ignored 
the  higher  forms  of  civilization  in  a  most  surprising  way.  Civilized 
Asia,  both  ancient  and  modern,  all  the  antique  culture  of  Africa, 
Asia,  and  Europe,  Islam,  the  Middle  Ages,  the  sixteenth,  seven- 
teenth, and  eighteenth  centuries,  and  modern  times,  —  all  that 
forms  only  a  single  group  in  his  scheme,  although  differences  are 
apparent  here  which  are  just  as  striking  as  those  which  distinguish 
the  different  forms  of  savagery. 

»  Loc.  cit.,  pp.  15-23. 


50  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

Another  criticism  to  be  made  (although  I  admit  the  admirable 
qualities  of  Morgan's  system)  is  that  the  divisions  of  Morgan 
relate  to  the  general  phases  of  human  progress,  rather  than  to 
special  classes  and  particular  types  of  culture  and  evolution. 
This  author  is  taken  up  with  the  simple  conception  of  evolution. 
That  seems  to  me  to  be  a  dangerous  bias,  particularly  for  one  who 
classifies.  Also,  he  is  much  too  systematic,  too  much  engrossed 
with  his  system,  to  be  able  to  make  his  classification  conform  to 
the  facts,  and  to  the  similarities  and  differences  which  they  really 
present.  In  running  through  his  book,  one  does  not  get  the  im- 
pression that  he  tried  to  embrace  in  one  view,  both  broad  and 
impartial,  all  the  groups  of  peoples;  it  seems  that  the  author 
dwelt  particularly  on  the  Indian  tribes  of  North  America,  on  the 
Greeks,  the  Romans,  and  the  Germans  of  Tacitus.  The  rest  is 
more  or  less  ignored.  How  else  can  one  account  for  the  fact  that 
according  to  his  definitions,  the  hunter-farmers  ("  Jagerbauern  ") 
should  be  counted  in  his  second  class,  the  barbarians,  when  they 
are  in  fact  among  the  lowest  societies  of  South  America,  Africa, 
and  India?  The  Australians  and  the  Polynesians  are  also  placed 
in  his  second  period  of  savagery ;  that  is,  among  the  most  savage 
peoples  who  are  actually  living.  Yet  how  can  one  put  in  the  same 
class  two  groups  of  people  so  entirely  different?  The  Fijians,  the 
New  Zealanders,  and  the  Hawaiians,  whose  social  and  political 
organization  is  very  developed,  w^ould  be  placed  in  the  same 
category  with  the  Australians  —  societies  almost  amorphous,  a 
great  part  of  which  does  not  even  recognize  a  leader !  ^  Finally 
and  particularly,  the  Polynesians  were,  in  general,  agriculturists, 
yet  had  no  such  primitiveness  about  them.^ 

Morgan's  principal  division  itself  (savagery  and  barbarism) 
seems  to  me  to  have  a  foundation  which  is  too  fragile  to  support 
the  entire  structure.  Savages  are  separated  from  barbarians  by 
the  invention  of  pottery.  But  to  begin  with,  Morgan  has  not  at 
all  shown  that  this  invention  is  attended  by  a  large  number  of 
secondary  characteristics,  which  would  really  make  it  a  distinctive 
and  essential  trait,  but  seems  in  fact  to  be  very  doubtful.  Again, 
such  an  invention  would  naturally  be  lacking  among  a  people 
which  possesses  none  of  the  material  required,  and  yet  such  people 
because  of  that  might  not  be  less  inventive,  nor  have  needs  less 

1  CJ.  Curr,  "The  Australian  Race"  (1886),  I,  pp.  53-56,  and  my 
"Erste  Entwicklung  der  Strafe",  II  (1894),  pp.  20-42,  where  I  have  dis- 
cussed the  question  of  the  government  of  the  Australians. 

2  Cf.  Waitz-Gerland,  * ' Anthropologie  der  Naturvolker",  VI  (1872), 
pp.  61-64. 


Chap.  I.J  A   CLASSIFICATION   OF   SOCIAL  TYPES  51 

well  satisfied.  An  example  will  illustrate  these  two  objections : 
it  is  that  of  the  Polynesians  compared  with  the  Melanesians. 
Among  the  former,  pottery  was  unknown,  but  they  were  skilled  in 
making  bottles  and  cups  out  of  that  admirable  material,  bamboo ; 
they  also  excelled  in  making  boats,  houses,  etc.  The  latter,  al- 
though much  less  advanced  in  all  respects,  knew  how  to  make 
pottery.^  Is  that  any  reason  for  an  ethnologist  to  place  the  Poly- 
nesians in  the  same  class  with  the  Australians,  and  place  the 
Melanesians  in  a  more  advanced  class  ? 

Morgan's  distinctive  mark  of  civilization,  phonetic  writing,  is 
more  significant,  because  more  essential  and  attended  by  more 
corollaries.  But  that  would  oblige  us  to  class  as  civilized  some 
very  inferior  societies,  some,  for  instance,  in  the  earlier  Middle 
Ages  and  the  Battas,  who  possessed  a  writing.^  But  is  there  not 
some  fact  which  is  more  essential  than  pottery  to  characterize 
the  barbarians  who  have  reached  the  threshold  of  civilization, 
and  to  distinguish  them  from  the  lower  forms  of  savagery  ?  There 
are  a  number  of  African  and  Indonesian  peoples  practised  in  the 
art  of  breeding  cattle,  and  yet  who  do  not  deserve  to  be  placed  in 
the  second  stage  of  barbarism.  The  invention  of  the  bow  and 
arrow  as  a  distinguishing  mark  between  the  second  and  third 
periods  of  savagery  is  open  to  the  same  objection.'  It  seems  that 
Morgan  has  made  a  poor  application  of  the  idea  of  the  Darwinian 
classifiers,  who  in  natural  history  often  group  animals  according 
to  signs  which  are  of  little  importance.^  For  them,  these  signs  are 
only  evidence  of  kinship,  which  is  their  true  principle  of  division. 
For  Morgan,  however,  these  insignificant  traits  form  the  true 
principles  upon  which  he  bases  his  classes,  even  the  most  important 
—  and  that  is  contrary  to  the  logic  of  classification. 

******* 

(c)  Now  let  us  turn  to  another  author  —  a  naturalist  who  has 
written,  a  very  new,  very  original  book  (with  many  omissions,  to 
be  sure)  on  the  evolution  of  morals.  In  order  to  avoid  the  tire- 
some repetitions  as  well  as  arguments  by  means  of  examples,  which 

1  Waitz-Gerland,  loc.  cU.,  VI,  pp.  70  and  595;  the  agriculture  of  the 
Fijians  alone  surpasses  that  of  the  Polynesians,  that  of  the  other  Melane- 
sians is  inferior  to  it :  ibid.,  pp.  579-580. 

2  Von  Bremncr,  "Besuch  bei  den  Kanibalen  Sumatras"  ^1894),  p.  293. 

3  C/.,  for  example,  C.  M.  Plcj/tc,  "Sumpitan  and  Bow  in  Indonesia" 
in  "Internationales  Archiv  fiir  Ethnographie,"  IV  (1891),  p.  267 ;  the  bow, 
which  is  not  known  in  Sumatra,  is  used  on  the  Mentaw  islands,  p.  275. 
Gonerallv  in  the  west  (Sumatra,  Borneo,  Celebes,  and  Java  included)  the 
sumpitan  is  used ;  in  the  east,  the  bow  is  used. 

*  Moll,  loc.  cit.,  p.  25;  FUrbringer,  loc.  cit.,  pp.  1124-1126. 


52  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

arguments  are  never  convincing,  Sutherland  has  elaborated  as 
an  introduction  to  his  work  a  classification  of  peoples,  based  not 
on  ethnical  relations  but  only  on  the  general  standard  of  their 
intelligence.^  There  is  hardly  any  need  of  remarking  that  this  as 
a  fundamental  principle  of  division  is  very  vague,  very  arbitrary, 
and  very  subjective.  It  gives  rise  to  an  infinite  number  of  different 
applications. 

To  determine  the  general  standard  of  Ihe  intelligence  of  peoples, 
Sutherland  makes  use  of  different  criteria,  which  are  not  the  ele- 
-ments  of  one  single  standard,  as  in  the  case  of  the  simple  classi- 
fications.    There  are  four  branches. 

(1)  The  division  of  savagery  is  characterized  by  the  three 
following  traits :  men  live  in  small,  isolated  groups,  at  a  distance 
from  one  another,  and  live  on  natural  products ;  their  life  passes 
completely  in  a  fight  for  existence. 

The  lowest  stage  is  occupied  by  the  lower  savages :  dwarfed, 
with  weak  limbs  and  large  bodies,  wandering  by  families  of  ten  to 
forty  members,  without  habitations,  almost  naked,  and  having 
the  smallest  human  skulls  known.  Such  are  the  pygmy  peoples : 
Akkas,  Bushmen,  Negritos,  Semangs,  and  Veddahs.  The  half- 
way savages,  next,  have  a  better  physical  appearance,  use  screens 
as  habitations,  know  what  clothes  are,  although  nakedness  re- 
mains common  to  both  sexes,  construct  rough  boats,  use  weapons 
of  stone  and  wood,  wander  in  hordes  of  from  fifty  to  two  hundred 
souls,  without  differences  of  rank  and  without  social  organiza- 
tion, but  with  customs  having  the  force  of  law.  This  class  in- 
cludes the  Tasmanians,  the  Australians,^  the  Ainu  of  Japan,^  the 
Hottentots,^  the  Fuegians,  and  several  forest  tribes  of  Brazil  and 
Guinea.  The  higher  savages,  finally,  are  of  medium  stature  (ex- 
cept in  arctic  regions) ;  they  have  habitations,  although  in  general 
these  consist  simply  of  tents  made  of  skin ;  nakedness  is  still 
very  common  to  both  sexes;  they  use  well-made  weapons  of 
stone,  copper,  and  bone;  they  wander  by  tribes  of  from  one 
hundred  to  five  hundred  souls;  insignias,  distinctive  of  rank, 
begin  to  be  used;   the  chiefs  have  a  poorly  defined  authority; 

1  "The  Origin  and  Growth  of  the  Moral  Instinct"  (1898),  pp.  103-108. 

2  For  the  most  part  they  do  not  possess  any  boats  at  ail,  Ratzel,  loc.  cit., 
II,  p.  51,  particularly  on  the  east  and  south-west  coasts  of  Australia. 

3  The  Ainu  are  not  going  naked:  Batchelor,  "The  Ainu  of  Japan" 
(1892),  pp.  45  seq.  Their  huts  are  good  enough:  Savage-Landor,  "Alone 
with  the  Hairy"  (1893),  p.  207. 

4  Neither  the  Hottentots,  who  wear  the  belt  with  the  kaross,  there, 
at  least,  where  they  remained  most  untouched  by  European  influences: 
Ratzel,  I,  p.  91. 


Chap.  I.]  A   CLASSIFICATION   OF   SOCIAL  TYPES  53 

order  is  based  upon  tribal  custom.  Included  within  it  are : 
the  majority  of  the  American  Indians,  such  as  the  Indians  of 
the  prairies,  the  Aleuts,^  the  Tinnehs,  the  Haida,^  the  Shoshones ; 
the  Patagonians,  the  Abipones,  the  Araucanians;  the  Samoids, 
the  Kamtchadales ;  the  Nicobarese;  the  Santals,  the  Todas, 
the  Karens,  etc. 

(2)  The  barbarians  obtained  the  greatest  part  of  their  suste- 
nance by  directing  by  foresight  the  productive  forces  of  nature; 
thus,  agriculture  and  breeding  of  cattle  are  their  characteristics. 
For  the  rest,  each  family  supplies  its  own  needs ;  there  is  little  divi- 
sion of  labor ;  but  since  means  of  subsistence  are  more  abundant 
and  more  regularly  distributed  during  the  year,  arts  and  sciences 
come  into  existence.  The  inferior  barbarians :  the  habitations, 
generally  permanent,  form  villages;  they  are  clothed  except  in 
the  warm  countries ;  pottery  is  known ;  they  have  good  boats,  and 
instruments  of  stone,  wood,  and  bone,  and  small  cultivations 
around  their  habitations;  commerce  begins;  there  are  fixed 
ranks,  but  based  upon  individual  merit  as  determined  by  war; 
the  government  is  directed  by  chiefs  according  to  traditional 
laws;  they  live  by  tribes  of  from  one  thousand  to  five  thousand 
souls,  but  are  capable  of  forming  larger  federations.  They  in- 
clude :  the  Iroquois,  the  Thlinkeets,  the  tribes  of  Guatemala, 
the  Mosquitos,  the  Maoris,  several  of  the  Melanesian  tribes,  the 
Basutos,  the  Kafirs,  the  Bechuanas;  the  Dyaks,  the  Battas,  the 
Ostyaks,  the  Tunguses,  the  Kirghiz,  the  Khonds,  and  the  Bhils. 
The  halfway  barbarians  :  they  have  good,  permanent  habitations, 
collected  in  such  a  way  as  to  make  large  towns ;  they  are  clothed, 
although  nakedness  is  not  considered  indecent;  pottery,  the  art 
of  weaving,  and  to  a  certain  extent,  working  on  metals  are  known ; 
commerce  begins ;  they  have  specie,  and  markets  are  usual ; 
they  are  found  combined  into  states  comprising  up  to  one  hundred 
thousand  souls,  governed  by  petty  kings,  with  codes  of  common 
law,  well-defined  ranks,  based  in  part  on  the  military  bravery 
of  the  individuals,  and  in  part  on  that  of  the  family.  This  class 
includes  the  prosperous  races  of  Central  Africa,  for  example :  the 
Dahomans,  the  Ashantis,  the  Wanyamvesi,  the  Niam-Niam, 
the  Dinkas,  the  Mombuttu ;  the  Fijians,  the  inhabitants  of  the 

^  Men  and  women  are  very  well  dressed;  their  settlements  contain 
up  to  three  hundred  persons  :  Bancroft,  "  The  Native  Tribes  etc.",  I,  p.  89. 

J  Nihlack,  "The  Coast  Indians  of  Southern  Alaska  and  Northern 
British  Columbia",  eh.  vi.  They  have  separate  dwellings  for  summer 
and  winter,  villages,  fortifications;  their  garments  are  richly  elaborated 
and  ornamented. 


54  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

Samoan  Islands,  Tonga,  and  Marquesas,  the  Germans  of  the  time 
of  Csesar,  the  Romans  before  Numa,  and  the  Greeks  of  Homer. 
The  high  barbarians:  they  possess  stone  buildings;  are  always 
clothed;  they  have  iron  instruments,  an  advanced  metallurgy, 
silver  money,  small  row-boats,  a  rough  justice,  administered  by 
courts;  they  may  count  one-half  million  individuals  under  a 
single  king,  with  hereditary  ranks,  and  extensive  division  of  labor. 
Sutherland  places  among  them :  the  Abyssinians,  the  Somali,  the 
Malayans  of  Sumatra,  the  inhabitants  of  Java  and  Celebes,  the 
Arabs  and  the  nomadic  Tartars,  the  Greeks  under  Solon,  ancient 
Mexico  and  Peru,  the  Jews  under  the  Judges,  the  Anglo-Saxons 
of  the  Heptarchy,  the  Romans  during  the  beginning  of  the  Re- 
public, the  Tahitians,  the  Hawaiians. 

(3)  Civilization,  the  third  branch,  is  distinguished  by  the  greater 
ease  with  which  men  procure  subsistence,  by  the  division  of  labor, 
by  the  extreme  differentiation  of  combined  functions,  by  inde- 
pendence; material  ease,  procured  without  difficulty,  together 
with  specialization,  causes  progress  in  the  arts  and  sciences. 
Lower  civilization  possesses  cities  enclosed  by  walls,  with  hand- 
some stone  buildings ;  the  plow  is  used ;  war  is  beginning  to  be 
the  task  of  a  single  class;  courts  of  justice  are  formally  consti- 
tuted ;  literature  begins.  The  peoples  which  belong  to  it  are : 
the  Algerians,  the  Touaregs,  the  Kabyles,  the  Turcomans,  the 
Tibetans,  the  Annamites,  the  inhabitants  of  Cambodia,  the  Jews 
of  the  time  of  Solomon,  the  Assyrians,  the  Egyptians,  the  Phoe- 
nicians, the  Babylonians,  the  Carthaginians,  the  Greeks  after 
Marathon,  the  Romans  in  the  time  of  Hannibal,  and  the  English 
under  the  Norman  kings.  The  half-way  civilization  :  the  temples 
and  the  houses  of  the  rich  are  well  built  in  stone;  professions 
multiply ;  there  are  sail-boats ;  writing  becomes  common ;  manu- 
scripts spread;  war  is  the  object  of  one  profession;  laws  are 
united  in  codes;  there  are  lawyers.  Of  this  class  are  the  Per- 
sians, the  Siamese,  the  Afghans;  the  Finns  and  the  Magyars  of 
the  last  century ;  the  Greeks  of  the  time  of  Pericles,  the  Romans 
at  the  end  of  the  Republic,  the  Jews  after  the  Macedonian  con- 
quest, .England  under  the  Plantagenets,  and  France  under  the 
first  Capets.  Higher  civilization :  the  houses  are  generally  of 
stone ;  roads  paved ;  there  are  canals,  and  water-  and  wind-mills. 
Navigation  becomes  scientific,  war  is  no  longer  the  task  of  the 
entire  people ;  books,  in  manuscript,  are  much  read,  and  litera- 
ture is  much  esteemed;  the  central  government,  very  strong, 
controls  dozens  of  millions  of  subjects;    codes  of  laws  are  put 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  55 

down  in  writing  and  officially  published ;  there  is  an  official  hier- 
archy, numerous  and  carefully  graded.  This  class  includes  the 
Chinese,  the  Japanese,  the  Hindus,  the  Turks,  the  republics  of 
South  America,  the  Romans  of  the  Empire,  and  Western  Europe 
of  the  fifteenth  century. 

(4)  The  author  does  not  give  us  the  general  characteristic  of 
his  highest  phase,  culture.  Inferior  culture  is  marked  by  the 
following  traits :  material  needs  are  more  easily  satisfied  by  the 
substitution  of  natural  forces  for  human  labor ;  this,  in  connection 
with  organization  and  a  more  efficacious  cooperation,  leaves  man 
free  to  cultivate  his  intellectual  and  esthetic  faculties;  the  press 
is  generally  employed,  education  is  an  essential  duty,  war  loses  its 
importance  more  and  more,  degrees  of  honor  depend  more  on 
mental  capacity  than  on  courage,  laws  are  made  by  the  represent- 
atives of  the  people,  there  is  the  beginning  of  national  efforts  to 
accelerate  progress,  and  diffuse  art  and  science.  The  principal 
European  nations  and  the  United  States  are  the  examples  of  this 
phase.  The  half-way  culture :  all  men  are  well  nourished  and 
lodged ;  war  is  universally  condemned,  although  it  still  exists 
now  and  then ;  small  armies,  which  all  peoples  unite  in  forming, 
do  the  police  duty  of  the  world ;  commerce  and  industry  develop 
along  sympathetic  lines  ( ?) ;  liberal  education  is  universal ; 
crimes  and  punishment  are  rare.  This  standard  will  be  attained 
in  four  or  five  centuries.  The  superior  culture  is  something  very 
nebulous ;  it  is  at  least  one  or  two  thousand  years  removed  from  us. 
I  ask  pardon  of  the  reader  for  having  given  so  fully  the  classi- 
fication proposed  by  Sutherland.  It  is  worth  pausing  for.  It 
would  have  been  impossible  for  me  to  have  made  it  known  and 
appreciated  by  a  more  succinct  sketch,  which  would  necessarily 
be  incomplete  and  inadequate  to  the  thought  of  the  author.  The 
merits  of  this  system  are  apparent.  In  adopting  a  division  of  four 
parts,  two  of  which  are  reserved  for  the  higher  forms,  the  author 
is  not  obliged  to  pack  together  in  one  division  all  the  societies 
which  have  passed  barbarism,  including  in  it  those  to  which  we 
ourselves  belong,  and  those  which  will  be  formed  only  in  the  re- 
mote future.  Its  framework  is  thus  larger  than  that  of  those  or- 
dinarily advanced.  Another  not  less  important  merit  is  to  have 
taken  as  a  principle  of  classification  the  general  standard  of  in- 
telligence ;  there  is  not  a  circumstance  which  is  more  essential  to 
human  society,  to  culture,  and  to  man.  Furthermore,  this  scien- 
tist has  given  us  a  review  of  peoples. at  all  stages  of  cuRure  which 
is  larger  than  that  given  by  any  sociologist.     What  a  pity  that  he 


56  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

did  not  develop  this  part  of  his  work  by  making  clear  to  us  the 
data  which  caused  him  to  put  a  particular  people  in  a  particular 
class,  and  the  sources  of  his  data !  The  entire  work  would  have 
gained  thereby ;  for,  in  the  condition  in  which  it  is,  we  cannot 
have  full  confidence  in  this  classification,  with  which  all  the  rest 
of  the  book  is  closely  connected ;  and  which  is,  otherwise,  one  of 
the  great  virtues  of  the  work. 

It  seems  to  me,  however,  that  this  classification  has  serious 
faults,  as  well  as  great  merits.  The  author  tells  us  that  his  wish 
was  to  arrange  the  peoples  according  to  the  standard  of  their 
intelligence;  for  his  special  aim,  such  a  classification  would  per- 
haps be  sufficient.  It  has  not  led  to  a  straight-line  classification, 
although  that  seems  to  have  been  the  aim.  But  one  people  can 
show  as  much  intelligence  in  farming  as  another  in  fishing.  To 
prosper  and  elevate  oneself  to  a  certain  degree  of  civilization 
when  one  is  placed  among  good  conditions  does  not  show  an  in- 
telligence superior  to  that  of  one  who  is  obliged  simply  to  struggle 
against  unfavorable  circumstances.  I  fear  that  such  an  esti- 
mate would  lead  only  to  a  dangerous  arbitrariness.  Who  will 
say  how  much  weight  should  be  given  to  such  and  such  an  inven- 
tion in  this  balance  of  intelligences?  The  way  in  which  Suther- 
land has  combined  his  tests  does  not  seem  to  me  sufficiently  au- 
thenticated. It  is  regrettable  that  he  has  not  given  his  reasons. 
The  use  of  windows,  for  example,  was  one  of  the  traits  of  his 
second  phase  of  civilization,  that  of  chimneys  one  of  the  third. 
Why?  As  far  as  the  historic  peoples  are  concerned,  it  is  easy 
enough  to  range  them  according  to  the  chronology  of  their  devel- 
opment (and  even  then  it  remains  yet  to  guess  at  the  question  of 
whether  the  progress  is  permanent  and  without  relapse !) ;  but, 
for  the  other  peoples,  according  to  what  rule  shall  we  proceed? 
Under  these  conditions,  any  estimate  runs  the  danger  of  becoming 
too  subjective. 

There  are  criteria  which  Sutherland  applies,  by  regularly  follow- 
ing the  march  of  their  evolution;  for  example,  dwelling  places, 
concentration  in  villages  and  towns,  social  integration.  But 
there  are  others  which  are  less  in  harmony  with  this  rule,  such 
as  the  evolution  of  government.  Here  Sutherland  chooses  one 
form  rather  than  another  because  it  happens  to  please  him ;  but 
even  if  he  is  in  accord  with  the  majority  of  his  readers  in  such  an 
estimation,  it  remains,  nevertheless,  personal  and  arbitrary.  The 
value  of  these  distinctive  traits  is  very  unequal,  because  the  use 
of  windows  cannot  have  the  same  symptomatic  significance  as 


Chap.  I.]  A   CLASSIFICATION   OF   SOCIAL  TY|»ES  57 

the  specialization  of  the  miHtary  profession.  What  shall  be  done 
if  such  unequal  symptoms  are  in  conflict?  And  in  general,  what 
shall  be  done  if  some  symptoms  are  lacking  and  others  are  present  ? 
Sutherland  does  not  give  us  any  directions  as  to  how  to  solve  these 
difficulties. 

Sometimes,  universal  judgment  is  in  flagrant  opposition  to  the 
comparisons  which  our  author  makes.  This  is  the  case,  for  in- 
stance, when  he  puts  races  like  the  Afghans  and  the  Finns  of  the 
last  century,  who  have  done  almost  nothing  for  the  progress  of 
humanity,  in  the  same  rank  with  the  Greeks  of  the  time  of  Pericles, 
who  in  many  respects  have  not  been  surpassed  by  any  race,  even 
among  the  civilized  ones.  It  seems  to  me  dangerous  to  measure 
the  intellectual  standard  of  a  society  by  signs  as  external  as  those 
which  Sutherland  employs.  I  believe  that  that  is  the  reason  for 
the  peculiarity  of  which  we  have  just  spoken.  In  general,  our 
author  furnishes  us  only  with  external  symptoms  for  adminis- 
trative, industrial,  and  scientific  progress.  The  tests  he  uses 
have  nothing  decisive  about  them.  The  real  degree  of  the  devel- 
opment of  philosophy  and  science  is  never  mentioned.  The 
transformation  from  manufacturing  economy  into  industrial 
economy  is  not  considered  an  indication  of  a  distinct  class ;  while 
arbitrary  signs,  such  as  the  lesser  importance  of  war,  for  instance, 
or  the  greater  importance  attached  to  mental  capacity  as  opposed 
to  military  courage,  occupy  an  important  place  among  the  symp- 
toms of  inferior  culture,  the  only  one  attained  up  to  the  present 
time.  Even  among  the  Australians  and  Indians,  wisdom  in 
council  was  highly  respected;  witness  the  respect  for  the  aged 
(which  later  disappeared).  The  mental  capacity  which  made  a 
good  hunter,  a  good  fisher  (e.g.  the  northern  peoples),  a  good 
merchant,  a  great  king,  has  always  been  greatly  esteemed.  The 
conferring  of  the  government  upon  the  representatives  of  the  people 
is  found  also  among  other  peoples  of  a  different  degree  of  civiliza- 
tion. It  is  an  open  question  whether  among  inferior  societies 
one  became  a  leader  because  he  was  rich,  or  rich  because  he  was 
a  leader ;  but,  according  to  our  author,  it  is  courage  in  war  which 
made  a  leader,  even  among  the  half-way  barbarians.  Art  and 
commerce  would  only  begin  with  barbarism;  commerce  would, 
still  be  in  a  state  of  infancy  with  the  half-way  barbarians,  while, 
as  a  matter  of  fact,  commerce  has  a  great  importance  for  all  the 
arctic  peoples,  in  the  largest  sense  of  the  word ;  ^  and  art  certainly 

'  Boas,  "The  Central  Eskimo",  "An.  Rep.  Bur.  Ethnol.",  VI  (1888),  p. 
469;  Von  Schrenk,  "Die  Volker  des  Amur-Landes "  (1891),  I,  pp.  590-630. 


58  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

shows  itself  among  the  superior  savages  as  defined  by  him.^  The 
organization  of  the  family,  the  connection  between  the  individual 
and  the  superior  and  inferior  groups,  the  intensity  and  extensive- 
ness  of  altruism,  the  conception  of  the  unknown  and  of  nature, 
are  not  taken  into  consideration  in  this  classification. 

One  of  the  signs  of  a  superior  civilization,  as  defined  by  him, 
would  be  the  extension  of  a  strong  central  government  over  dozens 
of  millions  of  subjects ;  but  then,  the  republics  of  the  Netherlands 
of  the  seventeenth  century,  which  only  counted  two  million  in- 
habitants, and  whose  central  government  was  notoriously  weak, 
Switzerland,  Portugal,  and  the  Scandinavian  states,  would  never 
have  reached  this  phase.  The  hunter-farmers  would  belong  to 
the  inferior  barbarians,  because  they  cultivate  the  soil;  but,  as 
a  matter  of  fact,  they  are  not  settled  peoples,  they  do  not  make 
good  boats,  their  hordes  are  small,  their  governments  are  as  weak 
and  powerless  as  possible.  Finally,  Sutherland  takes  the  advent 
of  lawyers  as  one  of  the  signs  of  half-way  civilization ;  this  suffi- 
ciently shows  the  external  character  and  the  incoherence  of  his 
criteria ;  for  this  would  have  been  a  good  point  only  on  the  ques- 
tion of  the  appearance  of  parties  to  litigation  by  representatives. 

To  resume,  the  idea  of  this  scientist  to  judge  of  the  relations 
of  descent  according  to  signs,  which,  although  insignificant,  are 
valuable  for  this  purpose  because  of  the  fixity  and  permanence 
which  is  theirs,  merely  because  of  their  slight  importance,  has 
received  a  poor  application  here.  The  standard  of  intelligence 
can  be  judged  only  by  its  most  characteristic  expressions.  Thus, 
Sutherland's  system  cannot  satisfy  us  either.  But  it  is  difficult 
to  give  a  definite  judgment  upon  it,  because  it  is  neither  developed 
nor  defended  by  its  author.  One  cannot  help  feeling  that  not 
enough  justice  is  done  to  him. 

5.  That  which  distinguishes  the  new  group  of  classifiers  of  which 
we  are  now  to  speak,  is  that  they  apply  a  really  essential  test. 
One  does  not  find  among  them  either  over-subtle  tests,  such  as 
weje  employed  by  our  previous  authors,  or  distinctions  whose 
essential  importance  is  susceptible  of  doubt.  They  go  straight 
to  the  point,  and  distinguish  societies  of  men  by  those  characteris- 
tics which  differentiate  them  more  than  any  other  thing.  At 
least,  that  is  their  claim ;  we  shall  see  how  far  they  have  succeeded. 

(a)  The  first  whom  we  take  up  is  Auguste  Comte,  the  mathe- 
matician who  became  a  sociologist,  a  constructive  mind,  who, 
while  maintaining  that   experience    (i.e.  positive  knowledge)   is 
1  Grosse,  "Die  Anfange  der  Kunst"  (1894),  passim. 


CiLVP.  I.]  ,         A   CLASSIFICATION   OF   SOCIAL   TYPES  59 

the  sole  domain  of  science,  yet  disdained  to  make  it  the  foundation 
of  his  work.  With  many  sociologists,  this  lack -strikes  us,  but 
with  none  more  than  Auguste  Comte,  the  reputed  founder  of  our 
science. 

The  simple  arrangement  which  Comte  has  given  us  of  the 
history  of  civilization  is  sufficiently  known.  A  true  science  of 
human  evolution  would  be  almost  identical  with  a  classification 
of  societies;  for  there  could  be  no  mistaking  the  various  paths 
which  the  peoples  have  traversed.  It  goes  without  saying,  that 
Comte  finds  only  a  single  line  of  evolution.  It  is  philosophical 
poetry  rather  than  positive  science.  According  to  him,  all  people 
pass  through  three  principal  phases  in  the  course  of  their  philo- 
sophical evolution,  and  from  this  point  of  view,  it  is  the  stage  at 
which  they  find  themselves  which  determines  the  rest  of  their 
social  life.  It  is  "  the  main  law  —  of  the  constant  and  indis- 
pensable succession  of  the  three  general  states,  primitively  theo- 
logical, transitionally  metaphysical,  and  finally  positive."  ^  The 
theological  state  is  subdivided  into  three  ages :  fetishism,  poly- 
theism, and  monotheism.  Parallel  to  the  theological  regime,  the 
military  regime  developed.  The  metaphysical  epoch  becomes 
the  critical  and  revolutionary  epoch  for  the  theological  as  well 
as  the  military  regime.^  The  positive  state  brings  with  it  peace 
and  the  overthrow  of  militarism.^ 

Comte  strives  to  deduce  all  social  changes  from  the  development 
of  the  successive  stages  of  the  human  mind.  He  gives  us  a  good 
example  of  this  dependence,  the  conversion  of  the  hunting  peoples 
to  farming,  in  consequence  of  their  attachment  to  local  fetishes, 
a  conversion  which  their  material  needs  could  never  have  caused.'^ 

In  the  parallel  advance  which  the  three  series  of  social  phe- 
nomena made,  esthetic,  philosophic,  or  scientific,  and  industrial, 
it  is  always  the  second  which  gives  the  impulse;  i.e.  the  philo- 
sophic stage  determines  the  industrial  and  esthetic  stage;  it  is 
quite  contrary  to  the  economic  materialism  of  Marx's  school. 
According  to  Comte,  the  conception  of  the  world  at  a  given  moment 

1  A.  Comte,  "Cours  de  philosophie  positive"  (1864),  IV,  pp.  303  seq., 
463  seg. 

2  Vol.  V  of  the  course  is  devoted  to  this  exposition. 

3  It  is  interesting  to  compare  Spencer's  theory  with  what  Comte  says 
(ly,  pp.  504  seq.)  on  the  opposition  of  the  mihtary  spirit  and  the  indus- 
trial spirit :  the  industrial  spirit  has  the  peculiarity  of  stimulating  the 
advance  of  some  without  suppressing  the  others;  while  the  reverse  is 
peculiar  of  the  military  spirit  (p.  509). 

*  hoc.  cit.,  V,  pp.  61-64;  nothing  but  interminable  phrases.'  Hahn's 
attempt  to  ascribe  to  agriculture  and  cattle  raising  a  mythological  origin 
is  otherwise  ingenious :  loc.  cit.,  pp.  89  seq. 


60  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

puts  its  imprint  upon  all  other  social  facts.^  It  is  curious  that 
Comte  himself  .was  unfaithful  to  this  theory,  which  seemed  to 
him  so  fundamental ;  from  the  year  1300  (he  conceded)  until  the 
French  Revolution,  it  was  industrial  evolution  which  dominated 
the  two  others ;  with  our  century,  thanks  to  the  advent  of  pos- 
itivism this  state  of  things  has  changed,  and  as  in  ancient  times, 
scientific  evolution  has  regained  its  preeminence  over  the  others.^ 
Comte  goes  to  much  trouble  to  show  that  the  various  epochs  of 
human  evolution  (ancient  times,'  Middle  Ages,  modern  times 
since  1300)  are  dominated  in  all  their  manifestations  by  the  actual 
condition  of  philosophy,  upon  which  depended  even  the  form  of 
government.^  It  is  certainly  his  idea  that  human  societies  "^ 
ought  to  be  arranged  according  to  their  philosophic  condition.^ 
Criticism  of  the  metaphysical  state,  which  as  such  has  never  yet 
existed,  is  easy.  From  another  point  of  view,  the  positive  state 
belongs,  even  according  to  Comte,  to  the  future.  There  only 
remain,  therefore,  the  various  phases  of  the  theological  state. 
Comte's  ethnographical  knowledge  was  very  slight ;  which  ex- 
plains why  he  dared  undertake  a  chronological  distinction  (in 
truth,  abstract)  between  the  fetish  stage  and  the  state  of  poly- 
theism. We,  after  the  splendid  work  of  ethnology  in  this  field, 
dare  not  follow  this  attempt :  the  two  states  are  too  inextricably 
mingled.  If  Barth  was  right  in  claiming  for  Comte  the  honor 
of  having  undertaken  the  finest  possible  classification  of  human 
societies,^  this  undertaking  has  miscarried;  and  the  abstract 
method  has  sustained  an  inevitable  check.  We  will  see  that  for 
the  principal  divisions  of  societies,  a  more  profound  distinction 
is  possible,  which  takes  more  account  of  given  facts:  Comte 
neglected  them  because  he  looked  at  them  from  too  great  a  height 
to  really  see  them.  For  the  inferior  divisions,  he  does  not  give 
us  any  distinctive  trait.  Thus,  for  the  practical  classification  of 
societies,  he  gives  us  no  help.  His  sole  merit,  from  our  point  of 
view,  was  the  establishment  of  the  principle  that  societies  might 
be  distinguished  according  to  the  general  characteristic  of  their 
intelligence. 

1  Loc.  cit.,  IV,  p.  461.  2  Loc.  ciL,  IV,  pp.  57-61.  ^ 

3  Barth,  loc.  cit.,  p.  54. 

*  He  only  considers  a  few,  and  that  very  superficially;  "une  saine 
analyse  speciale  (serait)  incompatible  avec  la  nature  abstraite  de  (mon) 
Elaboration  sociologique."  For  him,  Germany  comprises  Holland, 
Flanders,  the  Scandinavian  countries,  and  even  Poland!,  VI,  pp.  60-61.^ 

5  As  to  Comte,  compare  the  fine  estimate  given  by  Barth  in  his  "Phi- 
losophic der  Geschichte  als  Sociologie"  (1897),  pp.  23-57. 

8  Barth,  loc.  cit.,  p.  55. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  61 

(6)  One  of  the  most  thoroughly  worked  out  classifications  has 
been  given  us  by  Vierkandt.^  He,  too,  would  divide  peoples 
primarily  according  to  their  psychical  characteristics,  because  all 
the  phenomena  of  civilization  are  based  fundamentally  on  psy- 
chical processes.  The  height  of  civilization  and  psychical  apti- 
tude determine  each  other. 

The  classification  which  he  proposes  to  us  consists  first  of  two 
large,  fundamental  divisions:  the  primitive  peoples  ("Xatur- 
volker")  and  civilized  peoples  ("Kulturvolker").  These  last  are 
characterized  by  the  liberty  of  the  individual,  critical  taste,  and 
free  research  ;  the  former  are  determined  negatively  by  the  absence 
of  these  qualities.  Between  these  two  extremes,  are  found  the 
semi-civilized  peoples  ("Halb-Kulturvolker"),  who  are  like  the 
primitives  in  their  intellectual  life,  and  like  the  civilized  in  their 
economic  situation.     The  primitive  peoples  are  subdivided  into : 

1 .  Settled  semi-civilized  peoples ; 

2.  Semi-civilized  nomadic  peoples ; 

3.  Primitive  peoples  in  the  narrow  sense ; 

4.  Wandering  peoples ; 

while  the  third  principal  class  is  formed  by  the  peoples  of  mixed 
culture.  The  subdivisions  are,  therefore,  not  established  accord- 
ing to  the  same  principle  as  are  the  fundamental  classes,  although 
in  the  definition  of  half-civilized  peoples,  an  economic  element 
does  enter.  In  his  last  article,  as  may  be  seen,  the  author  makes 
semi-civilized  peoples  a  simple  variety  of  primitive  peoples.^ 
U^The  psychical  difi^erences  between  the  two  principal  classes  are  x^ 
the  following.  Primitive  peoples  remain  passive  when  in  the 
presence  of  nature,  while  civilized  peoples  dominate  it  to  their 
advantage.  Half-civilized  peoples  are  already  active  in  material 
life,  but  spiritually  they  are  still  slaves  of  nature ;  they  still  lack 
science  and  free  personality.  In  religion,  the  gods  are  feared  by 
the  primitives,  while  civilized  man,  on  the  contrary,  places  faith 
in  his  gods  ;  the  dynamic  principle  prevails  among  the  gods  of  the 
primitives,  but  among  the  gods  of  the  civilized  world,  the  moral 
principle  prevails.  Civilized  people  consciously  aspire  to  increase 
the  intellectual,  political,  and  economic  welfare,  and  in  their  efforts  / 
to   this   end,   successive   generations   form   a   continuous   chainV 

^  "Naturvolker  und  Kulturvolker"  (1896),  a  very  profound  study  (ra 
psychic  and  social  differences  between  these  two  classes  of  societies; 
"  Die  Kulturformen  und  ihre  geo^aphische  Verbreitung  "  in  "  Zeitschrift  ", 
1897  ;  "  Die  Kulturtypen  der  Menschheit",  "  Archiv  fiir  Anthropologic  ", 
1898. 

2  Cj.  pp.  62  and  63  of  the  article  "Kulturtypen"  with  pp.  141-142  of 
the  book  "Naturvolker  und  Kulturvolker." 


62  CRITERIA    OF   LEGAL  EVOLUTION  [Part  I. 

Some  element  of  this  complexus  is  lacking  in  all  primitive  peoples. 
The  former  are  historic  and  progressive,  whereas  the  latter  are 
without  continuity  and  paralysed  by  tradition.  Life  and  time 
have  little  worth  as  far  as  they  are  concerned ;  their  will  is  rather 
instinctive  and  impulsive,  lacking  sound  motives,  under  the  in- 
fluence of  the  moment.  Among  civilized  peoples,  simultaneous 
action  of  the  masses  is  very  rare,  although  common  among  the 
primitive  peoples,  where  individuals  bear  more  resemblance  to 
each  other  and  act  under  the  same  impulsion  by  virtue  of  the  same 
instinct.  Action  among  civilized  peoples  is  less  unified,  but  more 
energetic  and  permanent.  The  energy  of  the  primitive  peoples  is 
perhaps  not  inferior,  but  it  is  less  centralized  and  is  less  well 
directed  towards  a  goal  than  is  the  energy  of  civilized  peoples; 
ceremonies,  religious  rites,  niceties  of  language,  absorb  too  much 
of  the  strength  of  the  primitives.  Repression  of  evil,  when  it  has 
once  come,  is  a  characteristic  trait  among  these  peoples,  just  as 
foresight  and  prophylactic  treatment  distinguishes  civilized  peoples. 
Inferior  morality  is  marked  by  impulsiveness.  In  conflicts  be- 
tween egoistic  and  altruistic  tendencies,  it  is  public  opinion,  tradi- 
tion, and  fear  which  are  the  deciding  factors;  among  civilized 
peoples,  it  is  conscience  which  decides.  Disinterested  devotion 
to  an  ideal  task  is  unknown  even  among  the  half-civilized  peoples, 
who  have  not  even  an  idea  of  it.  Among  them,  the  individual  is 
bound  to  the  group;  free  personality  exists  only  among  civil- 
ized peoples.  The  sentiments  of  the  former  are  strong,  but  of 
short  duration;  those  of  the  latter  are  more  feeble,  but  more 
durable.  Moderation  in  expression  of  feeling,  absence  of  in- 
domitable passion,  are  the  essential  traits  of  culture.  True 
science  only  appears  with  civilization;  up  to  that  point  of  de- 
velopment, thought  is  dominated  by  mythology.  Primitive 
peoples  have  very  good  sensitive  organs,  very  excellent  memories, 
but  thought  soon  becomes  fatiguing  to  them;  they  are  more 
receptive  than  civilized  peoples,  but  the  latter  are  better  quali- 
fied to  produce.^ 

Wandering  peoples  include  the  inferior  savages  who  nourish 
themselves  with  the  lesser  animals,  crustaceous  animals,  or  even 
fish  and  products  of  the  chase,  and  live  from  day  to  day.  Vier- 
kandt  numbers  among  them  the  Australians  and  the  Tasma- 
nians,  the  Mincopies,  the  Veddahs,  the  Aetas,  the  Kubus,  the 

1  This  estimate  which  I  have  given  in  resumg  is  to  be  found  on  pp. 
63-67  of  the  article  "  Kulturtypen " ;  the  book,  pp.  106-252,  contains 
an  amplification  thereof  which  I  recommend  to  the  reader. 


Chap.  I.J  A   CLASSIFICATION   OF  SOCIAL  TYPES  63 

Bushmen,  and  the  dwarf  tribes  of  Africa,  the  Fuegians  and  the 
Botocudos.  Following  the  example  of  Peschel,  he  does  not  include 
the  Esquimaux,  and  that  for  very  good  reason.^  He  gives  us  a 
rapid  survey  of  that  which  these  peoples,  the  most  inferior  known 
to  us,  have  in  common. 

The  second  class  of  primitive  peoples,  the  true  primitives 
("die  eigentlichen  Xaturvolker")  are  characterized  by  their  modes 
of  subsistence;  for  their  nourishment,  they  depend  on  the  hunt, 
on  the  raising  of  cattle,  and  on  primitive  agriculture ;  they  are  not 
truly  settled,  with  the  exception  of  the  Polynesians ;   their  organ- 

'  ization  is  marked  by  totemism,  their  religion  by  animism  and  the 
beginning  of  mythology,  in  which  we  already  find  a  hierarchy  of 
superhuman  powers.  To  this  class  belong  the  Indians,  the 
northern  tribes,  the  northern  Asiatics  and  the  peoples  of  the 
Caucasus,  the  mountain  tribes  of  India,  the  negroes  of  the  south 
of  Soudan,  and  the  ocean  peoples,  with  the  exception  of  the 
Japanese. 

The  semi-civilized  nomads  are  found  only  in  the  steppe  zone  of 
Asia  and  Africa.  Materially  and  intellectually,  their  culture 
rises  high  enough,  but  their  struggle  with  nature  absorbs  all  their 
strength,  therefore,  the  ideal  is  not  known  to  them.  They  are 
the  masters  born  of  settled  but  weak  peoples.  These  shepherds 
are  very  apt  at  political  actions  by  large  masses,  because  all  the 
individuals  resemble  each  other  enough,  and  because  their  empty 
heads  offer  little  resistance  to  the  ideas  w^hich  are  suggested  to 
them,  while  their  mode  of  living  predisposes  them  to  energetic 
action.     Such  actions,  however,  are  not  lasting. 

The  last  subclass  is  that  of  the  semi-civilized  settled  peoples. 
Such  are  the  Mexicans  and  the  Peruvians,  and,  in  the  old  world, 
the  Oriental  states  surrounding  the  zone  of  steppes  :  the  states  of 
the  Soudan,  and  those  of  the  Orient,  but  also  India,  China,  Japan, 
and  the  Jews.     The  characteristic  which  differentiates  them  from 

-  us  consists  chiefly  in  their  submitting  to  the  absolute  domination 
which  their  authorities  exercise,  and  in  the  absence  of  all  ideal. 
They  do  not  possess  the  freedom  of  the  nomads ;  their  government 

F  is  despotic.  Their  religion  stifles  them  with  rites,  regulations, 
and  ceremonies.  The  state  is  founded  upon  and  maintained  by 
fear  and  tradition,  not  upon  national  devotion.  Their  religion  is 
generally  monotheistic,  but  the  deity  is  more  power  than  moral 
ideal ;  before  it,  the  individual  feels  nothing  but  his  insignificance. 

^  "Kulturtypen",  p.  67;  c/.  Schurtz,  "Katechismus  der  V6lfc<#rkunde", 
p.  30,  and  Peschel,  "  Volkerkunde "  (6th  ed.,  1883),  p.  144. 


64  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

The  third  principal  class,  that  of  mixed  cultures,  has  for  its 
origin  the  influence  exercised  by  the  European  civilization  on 
certain  inferior  peoples,  as  in  modern  meridional  America,  in  the 
colonies,  in  Japan,  and  in  the  whole  of  eastern  Europe.  Their 
characteristic  consists  in  this  —  that  superior  civilization  does 
not  penetrate  beneath  the  surface.^  As  for  the  historic  peoples, 
the  Greeks  alone  have  attained  true  culture ;  neither  the  Moham- 
medans of  the  Middle  Ages,  nor  the  Romans  were  advanced  as  far 
as  they.  It  began  in  the  cities  of  western  Europe  at  the  end  of 
the  Middle  Ages.^ 

No  other  author  has  given  us  such  a  thorough  justification  of 
his  classification,  which,  it  must  be  admitted,  offers  us  important 
advantages  for  our  object.  The  principle  of  division  is  very  deep ; 
it  is  really  productive  of  all  the  manifestations  of  social  life ;  Vier- 
kandt  has  demonstrated  it  in  a  masterly  manner.  I  shall  express 
my  appreciation  by  following  his  example  in  many  instances  in 
my  own  plan. 

However,  I  have  several  objections  to  make.  I  regret  that  with 
him,  the  semi-civilized  peoples  form  only  a  subclass.  Their 
differences,  in  reference  to  the  two  other  classes,  are  as  large  as 
those  of  an  intermediary  class  would  be.  It  seems  dangerous  to 
me  to  divide  all  humanity  into  just  two  halves.  The  principle 
which  governs  this  division  admits  of  too  many  distinctions; 
it  is  flexible  enough  for  a  richer  classification.  Mixed  civilizations 
cannot  form  a  separate,  principal  class;  every  subclass,  higher 
in  degree  than  the  lowest,  ought  to  have  beside  it  a  mixed  class 
which  contains  all  the  cases  where  a  society  of  one  degree  overlaps 
a  society  of  another  type.  In  Soudan,  there  are  plenty  of  examples 
of  barbarous  societies  which  exert  a  tolerably  strong  influence 
over  the  savage  peoples. 

I  also  see  a  danger  in  the  fact  that  Vierkandt's  sketch,  more 
philosophical  than  ethnographical,  reveals  a  tendency  to  imagine 
humankind  in  the  form  of  a  single,  progressive  line.  His  classi- 
fication is  too  linear  —  not  extended  enough ;  it  is  concerned 
too  much  with  the  degree  of  evolution  attained,  and  not  enough 
with  the  particular  characteristic,  the  social  type  of  the  respective 
peoples,  independent  of  all  progress.  All  his  classes  are  one  above 
the  other,  with  the  possible  exception  of  two  subclasses  of  the 
semi-civilized  —  nomads  and  settled.  Such  an  arrangement,  fol- 
lowing a  single  ascending  series,  seems  to  me  too  limited,  or  at 

1  ''Kulturtypen",  pp.  69-75. 

2  '^Naturvolker  und  Kulturvolker",  pp.  322-333. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  65 

least  dangerous,  while  our  science  is  so  young.  There  is,  in  short, 
too  much  theory  in  such  a  classification.  It  teaches  and  supposes 
only  a  philosophy.  That  is  what  I  want  to  avoid.  All  that  I 
expect  from  a  classification  adapted  to  the  actual  condition  and 
most  pressing  needs  of  our  science  is  an  ample  and  rational 
order.  It  ought  to  have  as  little  in  common  as  possible  with 
the  Procrustean  bed.  Its  compartments  should  be  elastic  enough 
to  permit  facts  to  slip  in  easily  without  danger  of  an  artificial 
arrangement. 

The  limits  of  the  two  subclasses  of  the  wandering  peoples  and 
the  genuine  primitives  ^  are  not  sufficiently  fixed  with  reference 
to  each  other ;  their  economic  life,  their  connection  with  the  soil, 
their  religion,  are  not  differentiated  enough,  at  least  according 
to  Vierkandt's  description,  to  justify  the  separation.  On  the 
other  hand,  I  would  want  to  distinguish  in  these  two  classes  of 
primitives  several  groups  of  peoples.  Vierkandt's  second  sub- 
class contains  too  many  dissimilar  elements. 

The  same  objection  might  be  made  to  the  manner  in  which  the 
superior  class  is  formed  —  that  of  the  truly  civilized.  One  feels 
the  pressing  need  of  subdividing  it.  Indeed  there  are  enough 
apparent  differences  in  this  class  to  permit  one  to  distinguish 
several  groups.  The  end  of  the  eighteenth. and  the  beginning  of 
our  own  century  seems  to  me  to  be  a  well  sketched-out  line  of 
demarcation :  here,  the  more  or  less  despotic  government,  and 
manufacture,  in  which  serfdom  and  nobility  remained  still  deep- 
rooted,  and  the  slow  progress  of  science;  there,  a  contrary  spec- 
tacle offers  itself  to  us !  The  modern  peoples  who  have  really 
undergone  this  evolution  are  divided,  cut  in  two,  by  this  line. 

Another  defect  in  Vierkandt's  system  is  that  it  is  not  malleable 
enough ;  it  does  not  leave  enough  room  for  the  new  classes  which 
might  be  discovered  by  a  more  profound  study  of  social  forms. 
It  is  a  final  system,  such  as  a  finished  science  might  claim  to  make. 
We  need  principles  of  division  which  will  not  only  be  large  enough 
to  include  everything  which  may  be  discovered  in  the  future,  but 
which  at  the  same  time  will  be  the  incentive  to  research,  the 
stimulus  which  encourages  us  to  make  finer  distinctions,  to  ana- 
lyze more  .thoroughly,  to  constantly  discover  new  forms.  Es- 
pecially no  anticipation !     Only  a  young,  flexible  system  belongs 

^  The  names  of  the  latter  seem  to  me  very  poorly  chosen.  Are 
nomadic  peoples  less  primitive  than  the  others?  The  author  has  probably 
started  out  to  denominate  the  second,  and  has  given  them  the  name  of 
the  entire  class,  while  the  nomadic  peoples  have  been  for  him  a  sort  of 
accessory. 


66  CRITERIA    OF   LEGAL  EVOLUTION  [Part  I. 

to  our  young  science.  And  I  believe  that  a  system  as  empiric  as 
possible  will  best  serve  our  purposes. 

6.  Finally  we  arrive  at  our  last  group  of  classifications.  The 
savants  whom  it  includes  attempt  to  apply  the  principle  of  eth- 
nographic relationship;  this  principle  is  opposed  to  that  of  the 
descent  of  peoples,  which  is  purely  anthropological,  and  to  that 
of  sociological  evolution,  according  to  which  the  social  forms  and 
elements  of  culture  must  be  studied  —  an  abstraction  must  be 
made  of  the  peoples  who  manifest  them.  These  ethnographers 
believe  themselves  able  to  distinguish  and  define  separate  domains, 
in  which  but  a  single  principle  of  civilization  rules.  Thus  they 
determine  definite  zones  of  civilization.  With  one,  it  is  the  in- 
fluence of  geographical  surroundings  which  predominates  in  the 
formation  of  these  zones  (Ratzel) }  With  another,  it  is  the  radiant 
action  of  a  given  center  which  makes  itself  particularly  felt,  al- 
though in  this  case,  the  influence  of  surroundings  is  not  forgotten 
either.^  Thus,  Ratzel  distinguishes  in  Africa  four  zones  of  culture  : 
the  Africans  of  the  south,  those  of  the  center,  those  of  the  east, 
and  those  of  the  Red  Sea  region.^  Frobenius  distinguishes  a  Greek 
culture,  an  oceanic  culture,  a  culture  of  the  Asiatic  continent,  one 
of  Eastern  and  another  of  Western  Africa.^ 

I  am  not  unappreciative  of  the  great  importance  of  these  re- 
searches. But  their  aim  is  historical  or  geographical,  rather  than 
sociological.  It  is  necessary  to  distinguish  the  sources  of  a  group 
of  similar  forms  and  to  explain  this  similarity ;  but  that  does  not 
dispense  with  the  duty  of  looking  for  other  similarities,  and  uniting 
them  in  groups.  It  is  not  merely  chance  that  the  ethnographers 
who  have  this  tendency  are  those  who  have  studied  the  material 
civilization  of  peoples,  the  forms  of  their  instruments  and  arms, 
the  details  of  their  ornaments  and  architecture,  etc.,  while  the 
ethnologists  who  regard  things  from  the  sociological  point  of  view 
are  those  who  have  devoted  themselves  to  the  study  of  social 
forms  and  the  products  of  superior  intellects.  The  varieties  of 
the  former  are  inflnite,  and  it  is  understood  that  in  such  matter 
the  action  of  imitative  radiance  is  great.  The  savants  who  study 
these  material  forms  are  always  inclined  to  accept  an  historical 
explanation,  connecting  civilizations  with  each  other  by  means 
of  filiation.     The  others,  the  socio-ethnologists,  noticing  that  the 

1  Ratzel,  "Volkerkunde"  (1885,  1st  ed.),  I,  pp.  18-19. 

2  L.  Frobenius,  "Der  Ursprung  der  Afrikanischen  Kulturen"  (1898), 
I,  pp.  ??-Q,  256. 

3  "Volkerkunde",  I,  pp.  37  seq.,  369  seq.,  568  seq.,  Ill,  pp.  59  seq. 
^  Loc.  cit.,  pp.  256  seq.,  passim. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  67 

ideas  or  the  customs  —  objects  of  their  studies  —  are  snot  imitated 
and  accepted  by  neighboring  peoples  with  such  facihty  because 
they  cannot  exist  without  being  more  or  less  deep-rooted,  prefer 
to  explain  it  by  interior  and  spontaneous  development.  Each, 
I  believe,  is  right  within  its  respective  special  domain.  The  science 
of  the  future  will  know  how  to  value  in  detail  and  w^th  precision 
that  explanation  which  ought  to  govern  the  given  problem.  In  the 
meantime,  w^e  cannot  ignore  this  truth,  that  the  world  cannot 
always  imitate,  there  must  be  somewhere  something  original, 
some  matter  for  imitation.  Now  we  wish  to  know  the  nuclei 
of  originality,  and  to  class  them  according  to  their  similarities. 
Not  all  the  hunter  peoples  have  taken  their  habits  of  the  hunt 
from  imitating  one  another ;  I  would  unite  them  in  one  group  for 
the  purpose  of  studying  the  other  characteristics  which  they  have 
in  common.  I  would  do  the  same  for  polysegmentary  peoples, 
the  inferior  barbarians,  or  another  class  of  some  division.  But  I 
would  arrive  at  curious  results  if  I  should  group  together  the 
peoples  w^hich  have  been  subjected  to  the  influence  of  the  Semitic 
civilization  !  The  Europe  of  our  era,  Asia  Minor.  Indonesia.  India, 
and  also  the  Africans  up  to  the  south  would  meet  there.  The 
American  from  the  Fuegians  and  the  Shoshones  to  Peru  would 
form  a  single  group.  TKe  usetuMeSS  6f  such  a  classitication  would 
be  insignificant.  What  a  variety  each  class  would  comprise ! 
A  new  classification  according  to  essential  resemblances  would 
then  be  inevitable.  Even  subdivisions  by  more  limited  radiating 
centers  would  not  relieve  us  of  this  necessity.  The  contradiction 
between  descent  and  resemblance  always  exists.  The  Finps-jire 
of  Ural-Altaic  descent,  related  to  the  Lap£s^nd  Samoyedes  and 
to  otKer  i\iaag£il3-^  Ratzel  places  them  then  under  the  typer- 
borcan  zone  of  culture.^  Since  the  last  century,  they  have  risen 
to  the  level  of  the  most  civilized  peoples  of  the  world.  Sociology 
needs  another  classification  than  this,  although  its  usefulness  for 
purely  ethnographical  purposes  cannot  be  denied. 

We  have  finished  our  resume  of  the  attempts  at  sociological 
classifications.     They  can  be  grouped  in  the  following  manner : 

Artificial  classifications  (Coste,  Ward,  Fouillee) ; 

]\Iorphological  classifications  (Spencer,  Durkheim,  Giddings) ; 

Economic  classifications,  of  which  one  accepts  as  a  principle 
of  division  the  method  of  distributing  products   (Hildebrand) ; 

1  Brinton,  "Races  and  Peoples"  (1890),  pp.  211-213;  F.  Muller, 
*'Alle:emeine  Ethno^aphie"  (1879),  p.  383. 

2  "Volkerkunde",  II,  pp.  753,  767. 


68  -    CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

another  the  general  organization  (Biicher) ;  another  the  develop- 
ment of  technique  (Grosse,  Hahn) ; 

Geographical-ethnographical  classifications  (Ratzel,  Froebenius) ; 

Psychological  classifications  (Comte,  Sutherland)  of  which  a 
variety  is  formed  by  the  classification  according  to  special  inven- 
tions (Morgan) ; 

Mixed  classifications  (Vierkandt,  Le  Play,  Steinmetz) ; 

With  a  diffidence  which  is  but  due  from  one  who  has  criticized 
all  others,  I  now  permit  myself  to  present  the  classification 
which  seems  to  me  the  best. 

^  Yl.   A  Suggested  Plan  of  Sociological  Classification 

After  all  these  attempts,  unexceptionally  interesting  and  often 
very  important  as  they  are,  it  would  be  indeed  unfortunate  were 
I  to  attempt  to  appear  entirely  original.  I  aspire  only  to  a  rational 
and  practical  eclecticism. 

Since  we  must  of  course  reject  the  artificial  systems  and  the 
geographical  systems,  then  (unless  we  use  a  mixed  system)  it 
remains  for  us  only  to  choose  between  the  morphological,  the  eco- 
nomical, and  the  psychological  systems. 

Regarding  the  morphological  systems  so  well  represented  by 
Spencer  and  Durkheim,  I  repeat  my  principal  objection :  I  fail 
to  see  the  essential  significance  of  that  principle  of  division;  I 
do  not  believe  that  it  involves  the  greatest  possible  number  of 
secondary  characters.  And  is  not  that  the  principal  criterion  for 
all  proper  classification? 

Thus  there  remain  for  us  only^  the  economical  and  the  psycho- 
logical systems. 

1.  For  the  great  principal  division,  the  latter  seems  to  me  the 
better  one. 


To  begin,  I  propose  to  assort  human  societies  into  four  branches 
according  to  the  predominating  characteristic  of  their  intellectual 
life.  This  intellectual  characteristic  is  the  result  of  a  great  number 
of  natural  causes,  which  blend  their  action ;  and  in  its  turn,  it  is 
the  determining  cause  of  a  not  lesser  number  of  characteristic 
traits.  This  is  the  central  element,  whose  influence  reaches  the 
farthest  possible  point  of  the  periphery;  it  is  the  most  essential 
trait,  carrying  with  it  the  greatest  number  of  derived  character- 
istics.    The  intellectual  character  of  a  society  ought  to  be  esti- 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  69 

mated  according  to  its  highest  point;  thus,  our  societies  belong 
to  the  highest  existing  type,  although  there  are  inferior  phases 
found  among  them.  A  society  occupies  the  rank  indicated  by  the 
intellectual  type  which  predominates  it  until  that  type  is  replaced 
by  another.  The  Middle  Age  was  the  Middle  Age,  despite  several 
liberal  and  critical  minds.^ 

The  first  branch  is  what  I  might  call  in  German  "Urmenschen." 
I  mean  by  that  those  who  do  not  think  much  differently  from  beasts, 
who  form  no  ideas  about  unknown  things,  pure  materialists, 
positivists  such  as  no  longer  exist.  They  not  only  lack  religion, 
but  also  all  idea  of  soul,  of  mind,  of  fetishes ;  they  have  as  yet  no 
conception  of  animism.  Perhaps  there  are  still  traces  of  this 
phase.  In  general,  it  is  prehistorical  and,  therefore,  hypothetical ; 
but  it  must  inevitably  precede  the  second. 

The  second  branch  is  that  of  tlie  savages  of  primitive  societies. 
The  doimlianl  lypeof  their  intellectual  life  is  marked  by  naivete ; 
they  think  only  by  association.  They  have  developed  animism 
under  the  form  of  spiritism,  of  the  cult  of  ancestor  worship  and 
fetishism.  These  men  are  not  yet  in  need  of  system  in  their  con- 
ceptions ;  their  intellectual  force  is  too  weak  for  such  an  effort. 

This  great  forward  step  is  taken  by  the  third  branch,  among  whom 
we  find  the  aptitude  to  systematize  ana  to  umty  id^^y.  diyJlL 
mythologies  and  hierarchies  of  superhuman  beings  are  the  products 
of  this  type;  inventions  of  considerable  importance  are  made; 
magnificent,  philosophical  poems  are  conceived;  even  a  certain 
amount  of  erudition  is  acquired.  But  the  human  mind  is  not 
yet  free.  Ancient  Asia  Minor,  Egypt,  China  up  to  our  own  times, 
the  Mohammedan  countries,  our  Middle  Age,  belong  to  this  class. 

The  fourth  branch  has  taken  birth  since  the  Renasppnrp  and  thp 
sixteenth  century.  Protestantism  is  one  of  the  first  manifestations 
of  the  essential  characteristics,  which  is  free  criticism,  a  methodi- 
cal and  scientific  attitude  towards  the  entire  world.  Humanita- 
rian morals,  methodical  and  not  spasmodic  social  reforms,  regular 
scientific  progress  which  serves  as  a  foundation  for  an  intensive  in- 
dustry, are  the  necessary  effect  of  this  intellectual  development. 

2.  These  four  branches  form  a  progressive  series.  That  is 
not  the  case  with  the  other  classes  which  I  am  going  to  propose. 
The  principle  of  their  division  will  be  the  general  characteristic 
of  economic  life. 

The  first  class  is  that  of  the  small  collectors  ("Sammler"),  who 
gather  the  gifts  of  nature  with  nothing  but  the  most  simple  in- 
^  Renter,  "Geschichte  der  religiosen  Aufklarung  in  Mittelalter." 


70  CRITERIA    OF  LEGAL   EVOLUTION  [Part  I. 

struments,  and  who  use  the  direct  products  of  this  harvest  to 
satisfy  their  needs ;  they  lack  all  industry  —  even  hunting  and 
fishing.  There  are  no  longer  any  traces  of  this  type.  A  subclass 
or  species  will  be  formed  by  a  higher  type  of  society,  which  still 
follows  pure  collection  as  the  foundation  of  its  nourishment, 
but  whose  economic  life  shows  a  higher  development,  thanks  to 
their  connections  with  societies  of  another  type ;  or  thanks  to  the 
extraordinary  richness  of  the  matter  to  which  their  activity  ap- 
plied itself:  they  are  the  superior  collectors  ("collecteurs  supe- 
rieurs")-  Such  mongrel  forms  are  found  in  several  of  the  Oceanic 
Islands,  where  palms  are  exploited,  but  not  cultivated. 

The  second  class  is  that  of  the  hunters,  who  live  only  on  the 
product  of  the  chase.  The  first  species  of  this  class  is  formed  by 
the  tribes  who  cannot  sustain  themselves  entirely  by  the  chase, 
but  still  resort  largely  to  simple  collection :  for  example,  the  Aus- 
tralians, the  Fuegians,  etc.  The  second  species  is  that  of  pure 
hunters;  the  third  comprises  the  peoples  who  are  partly  fishers 
and  partly  hunters;  the  fourth,  the  tribes  who  have  still  other 
occupations  besides  the  chase,  although  that  remains  their  prin- 
cipal means  of  sustenance. 

The  third  class  is  formed  by  the  fisher-folk,  who  support  them- 
selves almost  exclusively  by  means  of  fishing.  The  species  are 
formed,  as  in  the  preceding  class,  by  the  different  ways  in  which 
the  principal  method  is  combined  with  others.  Only  a  thorough 
study  could  make  all  of  them  known ;  my  preliminary  researches 
have  shown  me  the  following,  although  the  number  can  be  in- 
creased. The  first  species  is  that  of  the  fishermen  who  are  at  the 
same  time  either  collectors  or  hunters ;  the  second  is  that  of  pure 
fishermen  without  mixture,  the  third  is  formed  by  tribes  who 
find  sustenance  largely  in  other  ways,  for  example,  as  shepherds, 
sailors,  pirates,  etc. 

The  fourth  class  is  that  of  the  nomadic  or  hunter-farmers.  In 
the  first  species  we  will  put  all  those  who  present  this  kind  of  life 
in  its  pure  state :  wandering,  giving  no  thought  to  their  culture, 
they  are  without  domestic  animals,  and  have  no  occupation.  The 
second  species  show  a  more  developed  phase ;  it  is  still  impossible 
to  say  which  is  of  the  greatest  use  to  them  —  farming,  hunting, 
or  fishing,  but  they  give  the  greatest  care  to  plantations ;  they  are 
semi-settled ;  they  have  domestic  animals.  A  third  species  might 
be  formed  by  the  hunter-farmers  who  have  at  least  some  other 
occupation. 

The  fifth  class  contains  the  inferior  forms  of  true  agriculturists. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  71 

who  are  sedentary  and  to  whom  hunting  has  become  of  secondary 
importance,  although  it  is  still  of  real  use.  In  the  first  species 
they  are  in  as  pure  a  condition  as  possible.  In  the  second  they 
combine  agriculture  with  other  primary  occupations,  destined 
to  procure  for  them  their  first  necessary  materials,  provided 
always  that  these  occupations  have  at  least  some  importance  to 
their  life.  For  example,  they  are  carriers,  breeders  of  cattle.  But 
it  is  necessary  that  this  element  does  not  have  too  much  influence 
on  their  means  of  livelihood,  does  not  form  their  principal  means 
of  sustenance,  and  especially  does  not  make  them  nomadic.  For 
in  those  cases,  they  would  be  placed  in  the  class  of  wandering 
shepherds.  Perhaps  the  occasion  will  present  itself  to  distinguish 
still  other  species. 

The  sixth  class  is  formed  by  the  superior  agriculturists,  with 
whom  industry  and  commerce  are  not  yet  special  professions, 
with  very  rare  exceptions,  like  those  of  the  blacksmiths,  musicians, 
etc.  The  hunt  and,  in  general,  fishing  have  passed  to  the  third 
rank.  The  care  given  to  plantations  is  much  greater,  and  sus- 
tained by  artificial  means  of  some  importance :  they  make  use  of 
irrigation,  manure,  and  perfected  instruments.  They  can  be 
subdivided  into  species  according  to  Hahn's  distinctions :  for 
example,  superior  agriculture  which  does  not  use  the  pick-axe, 
intensive  agriculture  of  the  gardens,  etc.  Other  species  would 
be  formed  by  the  combination  of  agriculture  with  cattle-grazing, 
piracy,  ocean-fishing,  commerce,  or  other  combinations  of  these 
occupations. 

The  seventh  class  of  my  sketch  represents  the  nomadic  shepherds, 
that  is  to  say,  wandering  peoples  with  their  flocks,  who  procure 
their  principal  nourishment  in  one  or  another  manner.  In  the 
first  species,  they  still  make  more  or  less  use  of  hunting  and  fishing ; 
in  the  second,  they  are  in  a  state  of  purity;  the  third  is  formed 
by  shepherds  who  incline  already  towards  agriculture.  The 
subclasses  can  explain  the  degree  of  this  agriculture,  which  shows 
at  the  same  time  the  degree  of  their  attachment  to  the  soil,  the 
measure  in  which  they  are  becoming  settled.  I  suppose  that 
shepherds  might  be  divided  according  to  the  kind  of  beasts  which 
they  raise.  It  is  not  the  same  thing  whether  they  pasture  horses, 
deer,  cows,  or  goats. 

The  eighth  class  is  distinguished  by  the  complexity  of  condi- 
tions. The  division  of  labor  has  grown,  industry  is  much  more 
differentiated  and  occupies  a  higher  rank;  in  consequence,  com- 
merce is  of  greater  importance,  whether  interior  or  exterior.     But 


72  •       CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

the  concentration  of  working-men  in  the  shop  is  still  very  re- 
strained; a  great  part  of  industry  is  done  in  the  household,  as 
accessory  to  agriculture.  This  class  includes  European  peoples 
up  to  the  last  stage  of  the  Middle  Ages,  the  Chinese,  etc.  The 
kinds  are  formed  according  to  whether  one  or  another  secondary 
occupation  is  of  most  importance,  for  example,  fishing  in  Holland 
and  Norway,  lumber  industry  in  Germany,  etc. 

The  ninth  class  is  the  period  of  manufacture :  concentration 
of  human  forces  for  the  purpose  of  the  same  production,  with  a 
division  of  labor  among  them  and  a  still  rudimentary  use  of  natu- 
ral forces.  The  species  have  the  same  foundation  as  in  the  pre- 
ceding class;  at  least  their  formation  depends  on  whether  com- 
merce is  or  is  not  preponderant,  etc.  Probably  comparative 
study  will  establish  still  others. 

Finally  the  tenth  class,  the  last  which  has  been  revealed  up  to 
this  time,  is  characterized  by  industry :  division  of  labor  urged 
as  far  as  possible,  regular  use  of  natural  forces  (steam,  electricity, 
explosives,  etc.)  become  the  foundation  of  all  production,  the 
entire  economic  life  depending  upon  international  commerce  — ■ 
such  are  the  distinctive  traits.  One  distinguishes  the  species 
according  as  to  whether  the  type  is  more  or  less  elaborated,  ac- 
cording as  to  how  it  is  appreciably  mingled  with  other  less  elevated 
types.  Germany  and  Belgium  can  be  opposed  to  England  and 
France. 

3.  The  species  almost  always  admit  of  varieties;  that  is  to  say, 
groups  of  societies,  which  while  possessing  all  the  given  character- 
istics of  a  species,  vary  among  themselves  according  to  the  manner 
in  which  these  traits  are  manifested.  For  instance,  one  will  often 
meet  two  varieties  in  a  species,  depending  on  whether  the  place 
in  which  they  find  their  sustenance  is  rich  or  poor  in  that  respect. 
All  other  characteristics  remaining  the  same,  this  difference  in 
environment  will  bring  about  sufficiently  important  secondary 
differences.  Another  variety  is  due  to  the  fact  that  a  single  state 
will  often  include  very  different  classes ;  such  as  Italy,  the  United 
States,  Russia.  Such  a  state  would  be  a  variety  of  the  sort  in- 
dicated by  the  predominant  type ;  according  to  the  width  of  chasm 
which  separates  the  parts  of  these  states,  one  can  range  them  like 
varieties  or  else  form  different  species  of  the  same  class  with  them, 
as  I  have  indicated  in  the  tenth  class.  Another  variety  can  be 
formed  by  societies  which  possess  colonies,  mostly  tropical,  in- 
habited by  another  race  and  belonging  to  another  sociological 
class.     It  is  not  necessary  to  argue  that  the  possession  of  similar 


J 

Chap.  I.]  A  TLASSTFICATION  OF  St>CIAL  TYPES  73 

colonies  draws  with  it  not  only  economic,  but  social  consequences, 
which  extend  in  all  directions,  in  order  to  justify  a  variety.  It 
seems  to  me  also  that  varieties  may  be  distinguished  according 
to  whether  the  society  under  consideration  has  subjected  another 
society  of  a  species  of  the  same  or  a  different  class,  or  even,  on  the 
other  hand,  is  subjected ;  as  is  often  the  case  in  Africa  (the  Akkas 
subjected  to  another  people)  and  in  Indonesia.  In  any  case,  it 
is  necessary  that  the  connection  between  two  peoples  does  not 
reduce  itself  merely  to  the  payment  of  a  tribute. 

When  this  scheme  will  be  applied  to  the  mass  of  social  forms, 
certainly  other  species  and  other  varieties  will  be  found,  and  from 
one  thing  or  another,  the  necessity  will  arise  of  changing  the 
grouping  I  have  just  proposed.  It  is  only  after  long  experience 
with  a  classification,  that  the  plan  can  attain  perfection.  I  have 
explained  why  I  hope  that  the  future  progress  of  our  science  will 
consist  in  its  becoming  classified,  that  is,  in  its  becoming  an  actual, 
detailed  classification  of  all  known  societies  and  their  historical 
phases,  made  in  such  a  way  that  in  the  future,  all  argumentation 
and  sociological  research  must  rest  on  this  classification.  That 
is  our  first  duty.  I  have  a  faint  hope  that  in  such  a  practical 
application,  the  plan  proposed  by  me  will  prove  its  utility  and 
worth  as  a  working  hypothesis.  It  is  necessary  that  we  should, 
without  delay,  put  our  hands  to  the  work  and  apply  practically 
and  until  the  end  whatever  plan  the  men  competent  in  the  matter 
shall  prefer. 

VII.   Plan  of  a  Catalogue  of  All  Known  Societies 
and  Their  Historic  Phases 

I  have  a  conviction  that  there  is  perhaps  not  one  sociologist, 
historian,  or  ethnographer  who  possesses  a  complete  view  of  all 
societies,  both  living  and  past,  and  the  historic  phases  known 
by  us.  At  least,  our  historical  acquaintance  with  economic  and 
social  life  is  not  at  all  sufficient.  My  own  country,  although 
quite  small,  has  not  its  social  history ;  unless  I  am  mistaken,  the 
greater  part  of  civilized  peoples,  with  the  exception  of  England, 
Germany,  and  France,  find  themselves  in  the  same  position. 
Naturally,  scattered  materials  and  monographic  studies  are  pub- 
lished everywhere ;  but  we  are  far  from  possessing  a  social  history 
of  an  entire,  historic  people.  It  would  be,  moreover,  much  more 
urgent  to  work  in  that  field  than  to  enrich  without  end  our  en- 
tomological collections.     As  to  our  ethnographical  knowledge,  I 


74  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

have  already  mentioned  its  enormous  defects,  much  more  re- 
grettable, since  for  the  most  important  classes  of  phenomena,  for 
the  social  and  psychical  life,  they  cannot  be  later  remedied,  be- 
cause of  the  rapid  disappearance  of  these  peoples,  due  to  our 
civilization  and  our  brutality.^ 

******* 

But  it  is  not  sufficient  to  point  out  the  defects;  it  is  neces- 
sary to  expose  them  and  fix  them  in  our  minds  in  a  more  intensive 
manner.  It  is  this  result  which  can  be  obtained  by  the  cata- 
logue which  I  am  going  to  propose. 

I  propose  a  rational  catalogue  of  peoples  and  their  historic 
phases.  The  most  important  social  qualities  of  each  people  ought 
to  be  given  in  a  systematic  manner.  For  example,  the  name  of 
the  people,  the  character  of  its  economic  life  according  to  our 
classification,  the  character  of  its  government,  of  its  social  com- 
position, of  the  organization  of  the  family,  of  ownership,  its  demo- 
graphic situation,  its  intellectual  and  religious  phase,  etc.  I 
think  that  a  dozen  of  these  rubrics  would  suffice. 
^--  To  simplify  the  work,  a  fixed  and  precise  nomenclature  could 
be  accepted.  In  each  rubric  (1,  2,  3,  etc.)  each  characteristic 
would  be  defined  with  precision  and  designated  by  the  name,  which 
in  the  synoptic  sketches  could  be  replaced  by  a  letter ;  these  let- 
ters, indicating  characteristics,  would  then  have  a  fixed  signifi- 
cance. For  example,  if  the  rubric  "organization  of  the  family" 
was  the  third,  the  mother  rule  could  be  indicated  by  (a),  father 
rule  by  (6),  polygamy  by  (c),  polyandry  by  (d),  monogamy  by  (e), 
the  system  of  relationship  between  the  parents  by  (/),  easy  divorce 
by  (g),  etc.;  this  series,  it  is  clear,  has  a  purely  descriptive  and 
not  evolutionary  value.  The  character  which  only  manifested 
itself  by  several  surviving  traces,  could  be  indicated  by  the 
letter  placed  to  the  left,  and  above  the  letter  of  the  leading  char- 
acter ;  other  characteristics  of  the  same  nature  to  the  right.  The 
formula  of  the  family  of  the  Battaks  according  to  Wilken 
would  be :  3,  ah.  Naturally,  the  same  numeral  might  include 
several  letters;  for  example,  a  patriarchal,  polygamous  people 
would  be  represented  by  3,  6c;  if  it  is  monogamous  and  prac- 
tices the  system  of  relationship  between  two  parents,  by  3,  ef,  etc. 
A  transition  would  be  indicated  by  — :  for  example,  a — b. 

1  I  take  this  occasion  to  call  attention  to  the  excellent  little  book  of 
M.  G.  Friedrici,  "Indianer  und  Anglo-Amerikaner "  (Braunschweig, 
1900),  where  he  depicts,  according  to  the  best  sources,  the  outrageous 
conduct  of  Anglo-Saxons  against  the  Red-skins  down  to  our  days. 


Chap.  I.]  A   CLASSIFICATION   OF  SOCIAL  TYPES  75 

The  definitions  ought  to  be  very  exact,  entirely  conforming  to 
the  given  facts ;  if  this  should  be  impossible,  a  convenient  sign 
(for  example :  *)  would  indicate  it.  Naturally,  the  appendix  of 
the  tables  ought  to  contain  all  the  citations,  and  all  the  arguments 
which  led  to  the  definitions  represented  by  the  letters  of  the  rubric. 

What  are  the  advantages  which  I  expect  from  a  satisfactory 
execution  of  this  plan? 

In  the  first  place,  we  would  be  forced  finally  to  arrive  at  these 
precise  and  practical  definitions.  It  would  be  necessary  to  de- 
termine the  traits  which  make  us  declare  a  certain  society  ma- 
triarchal or  patriarchal.  It  would  be  an  inestimable  advantage 
in  our  fluctuating  science.  The  second  advantage  would  be  to 
have  a  catalogue  of  all  the  peoples  and  all  the  known  phases. 
This  table,  like  all  lexicons,  would  tend,  as  if  of  itself,  to  become 
complete  and  to  urge  all  workers  to  finish  it.  Soon  special  savants 
would  wish  to  correct  the  mistakes,  due  to  the  insufficiency  of 
their  work,  and  those  which  our  catalogue  would  bring  out  in  relief. 
That  would  excite  them  to  the  researches  of  which  we  have  need, 
and  the  results  of  which  we  shall  so  willingly  apply.  And  once 
having  become  accustomed  to  this  sufficiently  simple  nomen- 
clature, all  the  most  characteristic  traits  of  a  people  or  a  fixed 
phase  of  an  historic  society  could  be  seized  in  an  instant.^  Then 
no  more  vague  assertions,  in  which  the  fact  that  the  cited  people 
possess  altogether  different  characteristics,  will  be  forgotten.  One 
could  not  appreciate  too  highly  this  easy  way  of  recognizing  in 
their  systematic  relations,  the  essential  properties  of  the  people 
which  claim  our  attention.  These  tables  would  be  the  applied 
classification,  and  therefore  would  furnish  the  best  method  of 
reaching  necessary  corrections.  It  would  give  a  firm  base  to  a 
number  of  monographs  of  classes,  species,  and  variations  of  peoples 
which  would  form  a  part  of  the  otherwise  solid  sociology,  as  well 
as  the  deductions,  phrases,  and  vague  hypotheses,  with  which 
our  present  sociology  satisfies  itself  and  which  nobody  thinks  of 
verifying.  I  can  sum  up  all  the  advantages  of  these  tables  by 
simply  saying  that  they  constitute  a  catalogue,  and  what  is  more, 
a  systematic  catalogue.  / 

I  cannot  think  of  any  other  method  which  would  be  as  simple 
and  as  little  artificial  to  represent  to  us  in  one  moment  all  the 
essential  traits  of  each  known  people. 

^  I  believe  that  a  catalogue  of  from  a  thousand  to  fifteen  hundred 
peoples  and  phases  (for  their  delimitation  see  ante)  would  be  already  of 
great  use  for  ethnological  and  sociological  researches. 


76  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

I  hope  that  the  first  part  of  this  essay  has  prepared  the  reader, 
if  he  still  has  need  of  it,  to  realize  the  great  profit  which  serious 
sociological  research  would  draw  from  such  a  working  instrument. 
The  facilities  which  it  would  give  would  lead  more  effectively  to 
a  true  induction  than  the  most  eloquent  exhortations  ever  so  often 
repeated.  Water  follows  the  incline ;  it  is  necessary  to  make  the 
best  method  easy  in  order  to  see  it  properly  applied. 


Chapter  II 

THE    SCIENTIFIC    METHOD    OF    GENERALIZING    FROM 
DATA  OF  LEGAL  EVOLUTION^ 

PART    I.     METHOD     OF    CLASSIFICATION    AND    ANALYSIS 
OF  DATA  OF  JURAL  EVOLUTION 

§  1.   Jural  Ethnology  Defined. 

A.    Special  Jural  Ethnology 

(I)    Morphology 
§  2.   Morphology.     Definition  of  Terms. 

(II)    Stratigraphy 


§  3.  Two  General  Social  Types : 
Feudal  and  Gentilic. 

§  4.    Definition  of  Terms. 

§  5.  Method  of  Restoring  or  Pro- 
jecting Incomplete  Institu- 


tions. 
§  6.   Graphic  Formulas  Explained. 
§  7.   Use  of  Graphic  Formulas  to 

Classify  Peoples. 


(Ill)    Genealogy 


§  8.    Significance    of    Jural    Gene- 
alogy. 
§  9.    Definition  of  Terms. 


§  10.    Genealogic  Laws. 
§11.    Reconstruction  of  the  Gene- 
alogic Process. 


(IV)    Psychology 
§  12.   Method  of  Studying  Jural  Psychology. 

(V)    Philosophy 
§  13.   Method  of  Studying  Jural  Philosophy. 

B.    Comparative  J^0ml  Ethnology 


§  14.    Comparative  Morphology.^>^    §  17.    Comparative  Psychology. 
§  15.    Comparative  Stratigraphy.  §  18.    Comparative  Philosophy. 

§  16.    Comparative  Genealogy. 

^  By  Joseph  Mazzarella.  This  passage  is  taken  from  the  author's 
"Les  Types  Sociaux  et  le  Droit"  (Paris,  1908,  Octave  Doin;  vol.3  of- the 
Encyelop^die  Scientifique).  The  passages  translated  represent  pp.  45- 
146,  282-342,  371-422,  with  omissions.  The  translation  is  by  John  H. 
Wig  more. 

Dr.  Mazzarella,  of  Catania,  Sicily,  is  the  author  of  numerous  works 
of  original  research  in  comparative  legal  ideas,  chiefly  deahng  with  Hindu 
and  Malayan  law:  "La  condizione  giuridica  del  marito  nella  familia 
matriarcale",    1899;     "Teoria   etnologica   del   matrimonio   ambihano", 

77 


78 


CRITERIA    OF   LEGAL   EVOLUTION 


[Part  I. 


PART   II.     EXAMPLE   OF  THE  METHOD  APPLIED  TO 
COMPARATIVE   JURAL   PHILOSOPHY 

(I)    Data  to  he  Compared 


19.  The  Institution  of  Ambilian 

Marriage  in  Malaysia. 

20.  Its    Relation    to    Forms    of 

Social  Aggregation. 
20  a.    Its  Relation  to  Other  Forms 
of  Marriage. 

21.  Its   Relation   to  Systems  of 

Relationship. 

22.  Its    Relation    to    Domestic 

Power. 


§  23.    Its  Relation  to  Property. 

§  24.    Its  Relation  to  Obligations. 

§  25.    Its  Relation  to  Inheritance. 

§  26.  Its  Relation  to  Political  In- 
stitutions. 

§  27.  Its  Relation  to  Penal  Insti- 
tutions. 

§  28.  Its  Relation  to  Procedural 
Institutions. 


(II)  Causes  of  Ambilian  Marriage,  as  Exhibited  in  the  Series  of  Reference 


§29. 


Inductive   Determination  of 
the  Factors  of  Causation. 


§30. 


Deductive  Verification  of  the 
Same. 


(Ill)    Causes  of  Ambilian  Marriage  as  Exhibited  by  General  Ethnic  Com- 
parison 

§  31.    General  Ethnic   Comparison  I  visional  Inferences, 

as    Confirmatory   of    Pro- 


PART    III.     EXAMPLE    OF    THE    METHOD    APPLIED    TO 
SPECIAL   JURAL   GENEALOGY 


§  32.    The    Institution    of    Loan ; 
Its    Jural     Genealogy    in 


Ancient  India. 


33. 


(I)    Morphology 
The  Dharmasutric  Period.       I   §  35.    The    Yajnavalkyan    Period ; 


§  34.   The  Manavic  Period. 


the  Naradian  Period. 


(II)    Stratigraphy 


§  36.    The  Dharmasutric  Period. 
§  37.   The  Manavic  Period. 


38. 


The  Yajnavalkyan  and  the 
Naradian  Periods. 


(Ill)    Genealogy 


§  39.  Principle  of  Stratigraphic 
Variation  for  the  Dhar- 
masutric and  Manavic 
Periods. 
Reconstruction  of  the  Pre- 
Dharmasutric  Period. 


§40. 


§  41.  Reconstruction  of  the  Primi- 
tive Period. 

§  42.  Summary  Law  of  Morphologic 
Variation. 

§  43.  Summary  Law  of  Stratigra- 
phic Variation 


§  1.  Jural  Ethnology  Defined.  The  results  of  the  studies  to 
be  set  forth  in  this  work  show  plainly  that  our  theory  of  jural 
types  is  to  be  distinguished  from  that  of  Albert  Post,  and  marks 

1903 ;  and  numerous  articles  in  the  '*Rivista  italiana  de  Sociologia",  and 
elsewhere. 

To  comprehend  the  full  possibilities  of  the  rigidly  scientific  method 
here  expounded,  one  must  consult  the  original  treatise  and  the  various 
special  essays.  —  Ed.] 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  79 

a  new  stage  of  thought  in  jural  ethnology.  The  introduction  of 
the  idea  of  strati  graph  i'''  t^"f*lT^i'^,  which  was  quite  unknown  to 
Post  and  his  school,  is  the  mnr]TrrL_fpnitur»  of  ffltr  syatenij  and 
therefore  represents  the  new  phase  in  the  development  of  the 
science. 

In  our  opinion,  Jural  Ethnology  (or.  Ethnologic  Jurisprudence, 
or  the  Science  of  Comparative  Law)  is  that  science  which,  by  a 
comparative  study  of  the  customs  and  laws  of  all  peoples,  aims 
at  the  discovery  of  the  general  process  of  development  of  jural 
ideas  and  institutions,  and  of  the  causes  which  determine  them 
and  the  principles  by  which  they  operate.  We  divide  Jural 
Ethnology  into  two  parts :  Special  (or  anahi:ic),  and  General 
(or  comparative).  The  former  studies  a  specific  jural  system  from 
five  points  of  view,  viz.  its  morphology,  stratigraphy,  genealogy, 
psychology,  and  philosophy;  and  it  therefore  has  five  subdivi- 
sions. The  latter  part  (comparative  jural  ethnology)  aims  to 
discover  the  general  principles  and  causes  of  jural  evolution,  by 
the  aid  of  comparisons  of  the  several  systems  of  law  already 
analyzed  by  the  first  branch  of  the  science. 

We  shall  see  that  each  jural  system  can  be  decomposed,  mor- 
phologically, into  a  large  number  of  elements  themselves  irre- 
ducible, the  description  of  which  represents  the  jural  norms  of 
that  system.  We  shall  see  that  in  every  jural  organization  there 
are  two  fundamental  ethnological  tj^es,  viz.  the  feudal  and  the 
gentilic  (or  clan),  respectively  marked  by  the  absence  and  the 
presence  of  an  hierarchic  stratification  of  social  classes;  that 
every  jural  norm  is,  in  general,  inherent  in  the  one  or  the  other  of 
these  types,^  and  that  thus,  by  the  application  of  a  strict  analysis, 
one  may  determine  the  intrinsic  composition  of  each  jural  insti- 
tution and  system.  We  shall  see,  further,  that  by  the  use  of 
stratigraphic  analysis  we  may  not  only  discover  the  process  of 
development  of  each  institution  and  system,  and  may  recon- 
struct the  unrecorded  phases  of  their  evolution,  but  may  also 
study  the  psychology  of  each  people  as  revealed  in  its  law,  and 
may  discover  the  causes  which  in  each  system  determine  its  jural 
changes.  Finally,  we  shall  show  that,  by  the  same  use  of  strati-  [  A. 
graphic  analysis,  in  comparing  given  jural  systems  which  satisfy  I  ^J^^'^^^M, 
certain  required  conditions,  one  may  arrive  at  the  construction/ 
of  a  general  theory  of  the  evolution  of  law,  —  the  result  aimed  at 

^  [This  is  a  peculiar  assumption  of  the  author,  which  may  well  be 
thought  to  undermine  the  value  of  his  specific  results;  but  it  does  not 
affect  the  correctness  of  his  method.  —  Ed.] 


80  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

by  jural  ethnology.  The  several  methods  devised  by  us  for 
solving  these  problems  will  be  duly  described. 

The  applications  which  we  shall  make  of  our  general  theory  of 
social  types  will  enable  the  reader  to  judge  of  the  value  of  the  theory 
itself,  particularly  of  the  stratigraphic  analysis  which  forms  its 
characteristic  feature. 

What  we  particularly  insist  upon  is  the  strictly  methodical 
nature  of  all  these  investigations,  and  the  necessity  of  observing 
carefully  such  method  in  all  future  study  of  jural  ethnology. 

A.   Special  Jural  Ethnology 

(I)  .Morphology 

§  2.  Morphology.  Definition  of  Terms.  In  special  Jural 
Ethnology  {supra,  §  1),  morphology  aims  at  the  methodical 
reconstruction  of  the  jural  system  of  a  specific  people. 

A.  Jural  Activity.  (1)  In  every  people,  even  the  least  ad- 
vanced, jural  phenomena  group  themselves  into  distinct  orders, 
or  divisions,  ten  in  number,  including  respectively.  Forms  of 
Social  Union,  Marriage,  Relationship,  Domestic  Power,  Property, 
Obligations,  Succession,  Political  Institutions,  Criminal  Institu- 
tions, Procedural  Institutions. 

(2)  Every  act  done  by  an  individual  or  group,  falling  under 
one  of  these  ten  divisions,  and  permissible  to  be  done,  according 
to  the  sentiments  of  either  the  entire  people  or  a  specific  class 
thereof,  is  termed  a  jural  act.  The  essential  features  of  a  jural 
act,  therefore,  are:  (a)  a  relation  to  one  of  these  ten  orders  or 
divisions;  (h)  its  legitimacy  according  to  popular  or  class  senti- 
ments. 

A  jural  act  which  cannot  be  decomposed  into  more  elementary 
ones  is  simple  or  irreducible;  one  which  can  be  so  decomposed  is 
complex. 

(3)  The  totality  of  acts  of  individuals  and  groups  composing 
a  specific  people  at  a  given  time  is  termed  its  jural  activity. 

(4)  A  habit  of  action,  by  individuals  or  groups,  resulting  in  a 
uniformity  of  jural  acts  is  a  jural  practice.  It  is  simple,  when  it 
results  in  uniformity  of  simple  jural  acts;  complex,  when  it  re- 
sults in  a  uniformity  of  complex  ones. 

(5)  The  totality  of  jural  practices  among  a  specific  people  at  a 
given  time  is  the  regulative  content  of  their  jural  activity. 

(6)  A  body  of  jural  practices,  which  are  autonomous,  homo- 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  81 

geneous,  and  unitary,  and  are  intimately  bound  to  each  other  and 
are  exclusively  connected  within  the  same  fundamental  order 
{supra,  par.  1),  forms  an  institution.  The  order  of  grouping  of 
the  jural  practices  which  form  an  institution  is  the  morphologic 
scheme  of  the  institution ;  and  it  varies  in  function  with  the  nature 
of  the  institution. 

(7)  The  totality  of  institutions  relating  to  one  of  the  ten  fun- 
damental orders  (supra,  par.  1)  is  the  fundamental  complexus  of 
institutions.  Hence,  the  regulative  content  (supra,  par.  5)  of  the 
jural  activity  (supra,  par.  3)  of  a  people  includes  ten  such  com- 
plexus. 

B.  Thus  far,  we  have  surveyed  the  regulative  content  of  the 
jural  activity  and  its  subdivision?.  We  may  now  describe  these 
various  elements. 

(8)  A  formula  which  describes  synthetically  a  simple  jural 
practice  (supra,  par.  4)  is  a  jural  norm. 

(9)  The  sum  of  the  jural  norms  for  the  several  practices  com- 
posing an  institution  (supra,  par.  6)  is  the  representation  of  that 
institution. 

(10)  The  sum  of  the  norms  relating  to  a  fundamental  element 
of  the  morphologic  scheme  (supra,  par.  6)  of  an  institution  is  the 
elemental  complexus  of  norms.  When  the  element  (or  practice) 
is  decomposable  into  more  simple  ones  (supra,  par.  2),  the  sum 
of  the  norms  relating  to  each  such  secondary  element  is  a  group  of 
norms.  When  such  a  secondary  element  is  in  its  turn  decom- 
posable into  further  and  less  complex  elements,  the  sum  of  the 
norms  is  a  sub-group. 

Hence,  when  the  norms  composing  the  representation  of  an  insti- 
tution are  so  few  as  not  to  permit  of  division  into  several  elemental 
complexus  (supra),  the  morphologic  scheme  (supra,  par.  6)  of  an 
institution  is  said  to  be  of  the  first  degree;  when  it  admits  of  di- 
vision into  elemental  complexus,  then  it  is  of  the  second  degree; 
and  if  into  groups,  then  of  the  third  degree;  and  if  into  sub-groups, 
then  of  the  fourth  degree. 

(11)  The  sum  of  the  representations  (supra,  par.  9)  of  the  in- 
stitutions composing  a  given  fundamental  complexus  (supra,  par.  7) 
is  the  representation  of  a  fundamental  complexus  of  institution. 

(12)  Finally,  the  sum  of  the  jural  norms  of  a  given  people  at 
a  given  time  is  the  jural  system  of  the  people. 

This  idea  of  a  people's  jural  system,  with  the  several  subor- 
dinate ideas  above  defined,  permits  us  to  arrive  by  analysis  at 
the  irreducible  elements  which  compose  it.    And  by  its  aid  jural 


/ 


82  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

ethnology  arrives  at  the  level  of  the  most  advanced  sciences,  such 
as  physics,  chemistry,  biology,  and  philology,  which  have  de- 
composed their  subject  matter  into  ultimate  elements. 

C.  Sources.  The  distinction  between  a  jural  norm  and  a 
legal  precept  is  clear.  The  norm  is  essentially  descriptive;  its 
formula  is  the  work  of  science.  The  precept  is  the  product  of 
custom  or  legislation.  The  norm  describes  the  effect  and  mode  of 
operation ;  the  precept  may  often  not  reveal  its  application.  The 
precepts  and  the  practices  furnish  the  material  for  formulating 
the  norm.  .  ,  } 

(II)   Stratigraphy 

§  3.  Two  General  Social  Types :  Feudal  and  Gentilic.  The 
stratigraphy  of  special  jural  ethnology  {ante,  §  1)  defines  the  in- 
ternal composition  of  a  jural  system ;  i.e.  the  fundamental  types 
of  jural  organization  to  which  the  norms  and  institutions  are 
related.  In  our  view,  an  institution  (ante,  §  1,  par.  6)  is  not  a 
unitary  formation.  It  is  composed  of  simple  jural  practices 
(ante,  §  1,  par.  4),  which  are  the  ultimate  elements  of  a  people's 
jural  structure.  Each  practice  is  referable  to  a  fundamental  type 
of  jural  organization;  and  the  type  to  which  are  related  the  most 
numerous  and  important  practices  forming  the  institution  is  to  be 
deemed  the  prevailing  type  for  the  intrinsic  nature  of  the  institution 
itself. 

Herein  lies  the  importance  of  the  stratigraphic  conception  of 
institutions ;  for  upon  it  rest  all  inquiries  into  the  stratigraphy, 
genealogy,  psychology,  and  philosophy  of  a  system  of  law.  Hu- 
manity is  in  all  times  and  places  constituted  in  groups,  which 
differ  as  to  extent  and  cohesion.  According  to  Albert  Post, 
the  group  organization  may  be  founded  on  ties  of  blood,  of  com- 
munal life  in  a  given  territory,  of  the  protective  relation  between 
masters  and  serfs,  or  of  contractual  relations  between  individuals. 
For  these  four  bases,  the  jural  organization  may  be  termed,  re- 
spectively: gentilic  (or  clan),  territorial,  seigniorial  (or  feudal), 
and  corporative.  To  each  such  form  of  organization  is  related  a 
total  of  jural  institutions.  Often  there  are  found  in  a  single 
people,  side  by  side,  elements  peculiar  to  more  than  one  form  of 
organization ;  in  that  case,  however,  one  of  the  forms  has  a  pre- 
dominant importance.     Among  inferior  peoples,  usually,  is  found 

1  [At  this  point  the  author  enlarges  on  the  method  of  using  sources, 
and  the  kinds  of  sources,  for  ascertaining  the  tenor  of  jural  practices 
whence  to  formulate  the  norm.  —  Ed.] 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  83 

the  gentilic  form  only,  founded  on  kinship.  Among  the  most 
advanced  peoples,  the  gentilic  form  is  weakened,  and  the  corpora- 
tive or  individualistic  form  acquires  a  great  importance.  In 
transitional  stages,  the  seigniorial  form  is  preponderant.  The 
four  forms  mentioned  are  the  fundamental  ones,  i.e.  the  social 
types  viewed  jurally. 

It  will  be  noted  that  our  classification  differs  from  that  of  Albert 
Post.  We  recognize  only  two  main  types,  the  gentilic  (founded 
on  kinship)  and  the  feudal;  for  the  territorial  type  (of  Post)  is 
merely  a  variety  of  the  gentilic  (except  in  the  few  instances  which 
are  essentially  seigniorial  or  feudal) ;  and  the  corporative  or 
individual  type  is  only  a  variety  of  the  seigniorial  or  feudal. 
Moreover,  the  characteristic  feature  of  the  seigniorial  or  feudal 
type  is  not  (as  Post  believes)  the  relation  of  master  and  serf, 
but  rather  the  hierarchic  stratification  of  social  classes. 

Our  two  fundamental  types,  therefore,  the  gentilic  and  the 
feudal,  are  characterized  respectively  by  the  absence  and  the 
presence  of  this  hierarchic  stratification  of  social  classes;  each 
type,  of  course,  having  varieties. 

When  we  compare  the  jural  systems  available  for  the  purpose 
of  study,  we  find  that  many  of  them  exhibit  only  norms  which 
imply  the  lack  of  hierarchial  stratification  of  social  classes; 
while  many  others  possess  both  rules  of  this  sort  and  rules  reveal- 
ing the  action  of  such  stratification.  If,  after  observation  of  all 
the  jural  systems  available,  we  assemble  the  norms  showing  no 
hierarchic  social  stratification,  and'  then  place  together  those 
involving  the  same  institution,  and  then  group  these  institutions 
into  the  ten  fundamental  complexus  (ante,  §  1,  par.  7)  making  up 
each  people's  system,  the  schematic  jural  system  thus  formed  will 
represent  the  gentilic  type.  And  if  we  treat  similarly  the  norms 
which  do  reveal  a  hierarchic  social  stratification,  the  schematic 
jural  system  thus  formed  will  represent  the  feudal  type.  This 
stratification  is  of  the  greatest  importance  for  a  people's  jural 
life.  Observation  shows  that  the  structure  of  the  institutions 
composing  systems  marked  by  little  or  no  social  stratification 
differs  notably  from  that  of  institutions  in  systems  having  a  well- 
marked  stratification;  and  that  the  variations  of  such  structure 
correspond  always  to  variations  in  such  stratification. 

Stratification,  of  course,  is  not  to  be  confused  with  a  mere 
differentiation  of  social  classes;  for  differentiation  (whose  varia- 
tions correspond  to  the  complexities  of  human  societies)  does  not 
imply  an  hierarchic  relation  between  the  several  classes. 


84  CRITERIA   OF  LEGAL  EVOLUTION  [Paet  I. 

The  importance  of  our  classification  admits  of  no  doubt  in 
view  of  the  multipHcity  of  classifiable  groups  which  it  embraces, 
and  in  view  also  of  the  nature  and  value  of  the  principle  upon 
which  it  is  founded  —  a  principle  based  on  the  internal  structure 
of  juridical  systems.  It  has  a  purely  juridical  character,  and  is 
not  a  general  sociological  scheme ;  that  is  to  say,  its  arrangement 
of  social  groups  is  referable  solely  to  juridical  considerations. 

In  his  remarkable  essay  on  the  "  Classification  of  Social  Types"/ 
Steinmetz  affirms  the  necessity  of  a  general  sociological  classi- 
fication, and  he  presents  a  Qritical  and  detailed  study  of  various 
classifications  of  human  society.  But  in  a  brief  note  published 
in  the  "  Rivista  italiana  di  Sociologia  "  ^  we  have  shown  the  impos- 
sibility of  making  a  classification  of  social  types  from  the  point  of 
view  of  general  sociology  in  the  present  state  of  that  science, 
and  the  necessity  of  proceeding  in  the  various  social  sciences 
by  the  use  of  special  classifications.  Durkheim  has  correctly 
pointed  out  that  sociology  is  the  ensemble  of  sciences  which  deal 
with  the  various  manifestations  of  social  life — comparative  history 
of  law,  of  morals,  of  religion,  of  intellectual  culture,  etc. 

But  a  general  sociological  classification  ought  to  be  preceded 
by  a  series  of  classifications  of  human  societies,  elaborated  by  the 
various  social  sciences,  and  based  on  the  phenomena  of  each  social 
science  investigated.  In  other  words,  there  ought  first  to  be  an 
exact  classification  of  juridical,  religious,  ethical,  esthetic,  etc., 
types.  After  that,  by  a  comparison  of  the  groups  of  human 
society  discovered  from  the  standpoint  respectively  of  law, 
morals,  religion,  etc.,  the  connections  may  be  found  which  exist 
between  these  various  classifications,  and  the  discovery  made 
of  the  essential  qualities  and  the  secondary  qualities  of  social 
aggregations.  Then  only  will  be  possible  the  creation  of  a  general 
sociological  classification. 

Furthermore,  the  making  of  a  general  sociological  classifica- 
tion before  a  detailed  classification  of  the  several  social  sciences 
is  dangerous  for  another  reason.  Sociology  is  a  very  extensive 
and  complex  science.  Those  learned  in  it  cannot  have  profound 
knowledge  of  all  its  branches.  As  a  rule,  each  sociologist  studies 
by  preference  a  particular  social  department,  and  as  to  each 
fact  well  verified,  there  is  a  tendency,  easy  to  understand,  to 
attribute  to  it  a  pre-eminent  importance  over  other  phenomena 

1  [This  essay  has  been  translated  especially  for  this  volume,  and  ap- 
pears as  Chapter  I.  — Ed.] 

2  III,  Roma,  1899  —  "Studi  recenti  suUa  storia  della  famiglia  " 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF  GENERALIZING  85 

in  the  mechanism  of  social  life.  When  a  general  classification 
is  attempted,  in  which  account  ought  to  be  taken  of  all  varieties 
of  social  phenomena,  each  sociologist  naturally  is  inclined  to 
envisage  as  essential  those  characteristics  of  human  society  which 
are  connected  with  the  phenomena  of  which  he  has  the  most 
extensive  knowledge,  and  to  regard  as  secondary  those  qualities 
which  concern  other  kinds  of  social  data.  The  fact  speaks  for 
itself  —  the  various  sociological  classifications  which  have  an 
economic  basis  are  the  contributions  of  economists  (Hildebrand, 
Biicher,  Le  Play) ;  the  morphological  classifications  come  from 
those  deeply  learned  in  biology  (Spencer) ;  those  of  the  geo- 
graphical and  ethnographical  sort  are  the  efforts  of  ethnographers 
(Ratzel,  Frobenius).  The  danger  which  results  from  this  is  very 
great,  because  the  value  of  any  classification  whether  natural  or 
methodical  depends  on  the  choice  of  the  essential  qualities  which 
are  the  foundation  of  the  classification  itself.  It  follows  that  a 
general  sociological  classification  at  the  present  time  is  impossible, 
and  that  classifications  of  the  separate  social  sciences  are  necessary 
as  a  preparation. 

§  4.  Definition  of  Terms.  Each  of  the  two  fundamental 
social  types  (gentilic  and  feudal)  includes  a  number  of  varieties; 
the  discrimination  of  these  is  as  yet  very  imperfect  and  difficult. 

(a)  In  the  stratigraphic  analysis  of  a  jural  system,* the  ulti- 
mate object  is  to  ascertain  the  type.  The  type  of  the  system  is 
of  course  the  type  of  the  sum  of  the  norms  composing  the  system. 

But  usually  norms  of  both  types  are  found  co-existing.^ 

(1)  In  such  a  case,  the  type  to  which  belong  the  greater  number 
of  the  more  important  norms  is  the  dominant  type ;  and  the  other 
type  is  the  concurrent  .type. 

(2)  The  relation  between  the  number  and  importance  of  norms 
representing  respectively  the  concurrent  and  the  dominant  type 
is  the  coefficient  of  concomitance.  According  as  this  relation  or 
proportion  is  maximum,  medium,  or  minimum,  the  value  of  this 
coefficient  is  maximum,  medium,  or  minimum.  Only  the  ex- 
perience and  skill  of  the  investigator  can  avail  in  determining 
this  value ;  for  the  graduation  of  the  values  is  made  by  a  discre- 
tionary scale,  much  as  is  the  case  in  the  physical  sciences  when 
graduation  is  necessary. 

The  value  which  thus  indicates  the  number  and  importance  of 

*  Often,  indeed,  only  one  type  is  represented,  but  this  is  invariably 
the  gentilic  type;  no  system  is  found  exclusively  composed  of  feudal 
types,  i.e.  without  traces  of  the  gentiUc  type. 


86  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

the  norms  of  a  specific  type  gives  us  the  intensity  of  that  type 
in  that  system.  Hence,  the  coefficient  of  concomitance  has  a 
maximum,  medium,  or  minimum  value  according  as  the  difference 
between  the  intensity  of  the  concurrent  and  the  dominant  types  is 
minimum,  medium,  or  maximum. 

(6)  To  analyze  a  system  stratigraphically,  the  several  institu- 
tions {ante,  §  1,  par.  6)  composing  it  must  be  analyzed  stratigraph- 
ically, by  ascertaining  their  coefiicient  of  concomitance.  The 
process  to  be  employed  thus,  depends  on  the  degree  of  the 
morphologic  scheme  {ante,  §  1,  par.  10)  of  the  institution.  When 
the  scheme  is  of  the  first  degree,  the  elements  relating  to  each 
type  must  be  grouped,  and  thus  the  intensity  of  the  types  be 
ascertained;  after  which,  the  determination  of  the  dominant 
type  and  the  coefiicient  of  concomitance  presents  no  difficulty. 
When  the  scheme  of  the  institution  is  of  the  second  degree,  the 
several  elemental  complexus  {ante,  §  1,  par.  7,  par.  10)  of  the  norms 
composing  it  must  be  analyzed  stratigraphically;  then  the  re- 
sults of  these  analyses  must  be  compared,  and  the  dominant 
type  and  the  coefficient  of  concomitance  ascertained  as  before. 
For  institutions  having  a  morphologic  scheme  of  the  third  or  the 
fourth  degree,  an  analogous  process  must  be  used. 

(c)  Inasmuch  as  the  stratigraphic  nature  of  the  norms  {ante, 
§  1,  par.  8)  is  the  basis  of  the  stratigraphic  analysis  of  institutions 
(being  the  ultimate  elements  in  the  structure  of  the  institutions), 
we  may  distinguish  four  kinds  of  norms :  (1)  gentilic,  (2)  feudal, 
(3)  complex,  either  reducible  or  irreducible,  and  (4)  indefinite. 

(1),  (2)  The  first  two  classes  signify  those  norms  which  belong 
respectively  to  the  gentilic  and  the  feudal  type. 

(3)  The  third  class  comprises  norms  which  show  both  gentilic 
and  feudal  elements  coexisting.  They  are  irreducible  when  one 
of  the  two  types  dominates  in  their  structure;  otherwise,  they 
are  reducible,  i.e.  they  decompose  into  several  simple  norms, 
some  of  one  type  and  some  of  the  other. 

(4)  Finally,  an  indeterminate  norm  is  one  which  cannot  be 
classed  with  either  specific  type. 

{d)  For  the  purpose  of  assigning  to  one  or  the  other  type  those 
norms  which  offer  difficulties  of  interpretation,  the  following 
criteria  of  reference  are  to  be  used.  They  are  few  in  number,  but 
they  serve  for  the  analysis  of  systems  as  complex  even  as  that  of 
ancient  India : 

(I)  "  A  norm  belongs  to  the  gentilic  or  the  feudal  type,  re- 
spectively,  according  as  it  necessarily  presupposes,   directly  or 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  87 

indirectly,  the  absence  or  the  presence  of  a  hierarchic  stratifica- 
tion of  social  classes/' 

(II)  *'  If  a  norm  is  compatible  with  the  absence  of  such  strati- 
fication, and  is  found  constantly  in  purely  gentilic  systems,  it 
belongs  to  the  gentilic  type,  even  when  it  is  also  found  in  peoples 
where  both  types  coexist,  and  no  matter  which  type  is  dominant. 

"  If  a  norm  is  compatible  with  the  presence  of  such  stratification, 
and  is  formed  constantly  in  dominantly  feudal  systems,  it  belongs 
to  the  feudal  type,  even  when  it  is  also  found  in  systems  w^here 
the  feudal  type  is  only  concurrent  and  not  dominant." 

(III)  ''  A  norm  belongs  to  the  gentilic  type  when  it  presupposes 
necessarily  the  autonomy  of  some  form  of  human  association  of  the 
gentilic  type,  i.e.  of  the  single  or  personal  family,  the  communal 
home,  the  clan,  the  tribe,  or  the  tribal  confederation." 

(IV)  "  A  norm  belongs  to  the  feudal  type,  when  it  presupposes 
necessarily  a  marked  development  of  a  contract  system."  (The 
latter  two  criteria  are  merely  applications  of  II  above.) 

(V)  "  A  norm  belongs  to  the  gentilic  or  to  the  feudal  type 
according  as  it  presupposes  necessarily  the  existence  or  the  absence 
of  a  State."  (This  is  justified  by  the  essentially  feudal  nature  of 
the  State,  and  the  well-established  relation  between  the  intensity 
of  State  power  and  the  intensity  of  hierarchic  stratification  of 
social  classes  in  systems  preponderatingly  feudal.) 

§  5.    Method  of  Restoring  or  Projecting  Incomplete  Institutions. 
The   stratigraphic    process   is    applicable   to   institutions   whose      / 
morphologic  reconstruction  can  be  made  with  relative  complete- 
ness.    When  such  reconstruction  is  incomplete,  one  of  the  follow- 
ing methods,  devised  by  us,  must  be  employed  for  the  purpose. 

(I)  The  first  method  consists  in  classifying  the  fundamental 
features  of  the  institution  as  far  as  ascertainable,  and  then  in 
determining  the  type  with  which  they  are  compatible.  Three 
distinct  cases  may  here  be  presented : 

(a)  The  fundamental  features  may  be  compatible  with  one 
only  of  the  two  types ;  in  such  case,  the  institution  must  be  classi- 
fied as  of  that  type. 

(b)  The  fundamental  features  may  be  compatible  with  either 
type.  In  such  case,  since  the  two  types  have  features  in  common, 
they  are  not  distinct  types,  but  are  varieties  of  a  third  and  un- 
kno^^^l  type,  which  one  must  seek  to  determine  by  comparison 
of  the  institution  in  question  with  other  analogous  ones ;  because, 
since  each  type  has  its  own  features  distinct  from  the  other,  the 
institution  having  these  fundamentals  cannot  be  of  different  types. 


88  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

(c)  The  fundamental  features  of  the  institution  are  incompatible^ 
with  either  of  the  known  types.  In  such  case,  the  institution 
must  be  referred  to  an  unknown  type,  whose  determination  must 
be  made  by  the  foregoing  criterium,  so  far  as  feasible. 

The  foregoing  method  is  based  on  the  consideration  that  an 
institution,  in  order  to  belong  to  a  type,  must  be  compatible  with 
the  fundamental  features  of  that  type. 

(II)  For  the  second  method,  certain  new  terms  must  be  defined : 
viz.  intensity  and  diffusion. 

(1)  Intensity.  An  institution  occurs  sometimes  in  p7ire  form, 
i.e.  with  all  its  features ;  sometimes  in  attenuate  form,  i.e.  lacking 
some  of  its  features;  or  in  residual  form,  i.e.  with  only  some 
features  remaining,  these  survivals  presenting  a  graded  scale  of 
importance  depending  on  the  strictness  of  their  connection  with 
the  pure  institution.  The  degree  of  purity  of  an  institution  is  its 
intensity. 

Hence,  an  institution  found  in  its  pure  form  has  a  maximum 
intensity;  one  presenting  only  surviving  features  of  least  closeness 
and  directness  has  a  minimum  intensity.  Moreover,  if  we  set  down 
in  series  the  pure  form  with  the  several  attenuate  and  residual 
forms  of  an  institution  according  to  the  degree  of  their  purity, 
we  shall  have  a  complete  table  of  the  possible  intensity  of  the 
institution ;  and  the  degrees  of  such  intensity  may  be  represented 
by  a  numerical  scale  (see  §  6,  post). 

(2)  Diffusion.  The  ethnographic  area  of  existence  of  an  in- 
stitution is  its  diffusion.  Absolute  diffusion  is  the  total  number 
of  peoples  among  whom  the  institution  has  been  observed.  Rel- 
ative diffusion  is  the  frequency  of  its  practice  in  a  given  people. 

Our  second  method,  then,  consists  in  decomposing  the  jural 
organization  of  each  people  practising  the  institution,  in  noting 
carefully  the  type  to  which  each  element  belongs,  and  then  in 
ascertaining  the  clear  and  constant  relation  (if  any)  between  the 
abundance  of  the  elements  of  one  type  and  the  intensity  and  relative 
diffusion  of  the  institution  in  question.  For  this  purpose,  we  must 
classify  the  several  peoples  in  a  descending  series  according  to 
the  degree  of  intensity  and  the  relative  diffusion  of  the  institution. 
If  then  it  appears  that  such  intensity  and  diffusion  are  propor- 
tionate, through  the  entire  series,  to  the  abundance  of  the  elements 
peculiar  to  one  or  the  other  fundamental  type,  we  are  bound  to 
conclude  that  the  institution  itself  belongs  to  that  type.  The 
strength  of  this  inference  depends  on  the  extent  of  the  series 
observed. 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  89 

The  foregoing  method  is  plainly  legitimate,  for  it  is  merely 
an  application  of  the  method  of  "concomitant  variations",  one 
of  the  most  rigid  of  logical  methods.  It  implies  the  applicability 
of  other  methods  also,  which  permit  us  to  determine  the  relations 
of  an  adequate  number  of  institutions  to  their  types.^   .   .   . 

(Ill)  Normality.  It  remains  here  to  explain  one  more  term, 
which  is  needful  for  analyzing  certain  parts  of  our  subject,  viz. 
normality. 

When  several  distinct  forms  of  the  same  institution  coexist  in 
the  same  people,  the  institution  is  polymorphic.  Usually,  in  a 
people  having  a  polymorphic  institution  at  a  given  stage  of  its 
history,  some  one  form  of  the  institution  is  regarded  by  public 
opinion  as  its  typical  form,  i.e.  the  form  which  all  wish  to  practice 
and  do  practice  when  feasible.  This  is  the  normal  form,  or  the 
normal  institution.  But  usually  public  opinion  further  recognizes 
distinctions  of  value  between  some  of  the  forms  and  others,  i.e. 
a  sort  of  hierarchic  stratification  of  them.  Hence,  the  several 
forms  of  a  polymorphic  institution  may  be  arranged  in  a  descend- 
ing series,  the  normal  form  being  the  highest  and  the  rest  follow- 
ing in  the  order  attributed  by  public  sentiment.  This  series, 
which  is  usually  a  brief  one,  may  be  termed  the  normality  series 
of  the  institution ;  and  the  value  or  index  of  normality  of  a  given 
form  of  the  institution  is  given  by  its  position  in  the  series. 

The  determination  of  such  a  series  is  of  course  a  difficult  task, 
for  it  requires  a  careful  study  of  popular  sentiment  with  regard 
to  the  institution.  The  several  numerical  values  of  normality  in 
this  scale  would  be  determined  by  each  observer's  discretion; 
and,  in  view  of  the  psychological  indefiniteness  of  the  material, 
it  must  suffice  to  distinguish  three  degrees  only,  viz.  maximum, 
medium,  and  minimum;  the  maximum  degree  being  attributed 
to  the  normal  form  of  the  institution. 

§  6.  Graphic  Formulas  Explained.  Having  thus  defined  the 
terms  necessary  in  stratigraphic  analysis,  it  remains  to  devise  a 
graphic  scheme  for  representing  concisely  the  results  of  such 
analysis  for  a  given  people  and  institution. 

The  stratigraphic  composition  of  any  given  body  of  norms 
(whether  a  group,  or  a  sub-group,  or  an  institution  or  a  complexus, 
etc. ;  see  ante,  §  1),  i.e.  the  relation  between  the  dominant  and 
the  concurrent  type  for  that  body  of  norms,  may  be  expressed 
by  the  coefficient  of  concomitance  {ante,  §  4,  par.  (a)  1)  of  the 

^  [At  this  point  the  author  expounds  two  additional  varieties  of  method. 
—  Ed.] 


90 


CRITERIA    OF   LEGAL   EVOLUTION 


[Part  I. 


V 


concurrent  type.  This  is  the  stratigraphic  formula  of  that  body 
of  norms.  It  is  noted  by  combining  in  a  parenthesis  the  abbre- 
viation of  the  name  of  the  dominant  type  with  that  of  the  concur- 
rent type,  followed  by  the  coefficient  in  a  small  figure  below  the 
line.  The  three  degrees,  maximum,  medium,  and  minimum 
(ante,  §  4,  par.  (a)  1),  of  the  relation  of  concomitance  of  the  two 
types  are  represented  by  the  figures  3,  2,  1 ;  and  the  absence  of 
any  concurrent  type,  by  the  figure  0. 

For  example,  if  in  the  stratigraphic  analysis  of  a  given  sub- 
group of  the  jural  system  of  a  given  people  we  find  that  the  feudal 
type  is  the  dominant  one,  and  that  the  gentilic  type  is  also  present 
in  medium  value,  the  stratigraphic  formula  will  be  :  (Feud . ,  Gent  .2) . 
If  in  another  sub-group  we  find  the  gentilic  type  alone  existing, 
the  stratigraphic  formula  is:    (Gent.,  Feud-o). 

This  use  of  formulas  is  extremely  important,  in  that  it  enables 
us  to  represent  the  results  of  an  analysis  in  tabular  form.  Such 
a  table  bears  upon  the  degree  of  the  morphologic  scheme  {ante, 
§  2,  par.  6)  of  the  system  examined,  and  thus  upon  the  degree  of 
the  analysis  effected.  The  extent  of  the  table  itself  bears  upon 
the  extent  of  the  morphologic  scheme  of  the  system;  the  most 
complete  table  will  be  one  which  comprises  the  results  of  an 
analysis  of  an  entire  system  to  the  fourth  degree  (ante,  §  2, 
par.   10). 

§  7.  Use  of  these  Formulas  to  Classify  Peoples.  This  strati- 
graphic analysis  enables  us  to  represent  in  outline  the  classifica- 
tion of  jural  systems,  or  (what  comes  to  the  same  thing)  the 
classification  of  peoples  from  the  jural  point  of  view.  The  detailed 
analysis  of  the  lowest  elements  of  the  system  forms  the  basis  for 
the  classification  of  the  intrinsic  constitution  of  the  system.  In 
the  following  table  are  set  forth  the  seven  classes  into  which  all 
jural  systems  are  reducible;  they  may  be  called  type-families 
of  law. 


Concurrent 

Numerical 

Dominant 

Type,  with 

Designation 

Type 

Coefficient  of 
Concomitance 

1 

Gentilic,  pure 

Gentilic 

Feudal  0 

2 

Gentilic,  semi-pure 

" 

Feudal  1 

3 

Gentilic,  feudal 

" 

Feudal  3 

4 

Gentilic,  semi-feudal 

(( 

Feudal  2 

5 

Feudal,  semi-pure 

Feudal 

Gentilic  1 

6 

Feudal,  gentilic 

" 

Gentilic  3 

7 

Feudal,  semi-gentilic 

u 

Gentilic  2 

Chap.  II.]  THE  SCIENTIFIC   METHOD   OF  GENERALIZING  91 

This  table  shows  in  the  first  column  the  numerical  designation, 
and  in  the  second  the  name  of  the  type-family  of  law;  in  the 
third  column  is  the  dominant  type,  and  in  the  fourth  column  the 
concurrent  type,  w4th  the  coefficient  of  its  concomitance,  for  that 
particular  type-family.  It  will  be  noted  that  no  purely  feudal 
type-family  of  law  is  shown,  for  observation  reveals  that  no  known 
jural  system  is  exclusively  of  the  feudal  type ;  that  type  is  always 
found  mingled  with  more  or  less  numerous  elements  of  the  gentilic 
type. 

As  an  example  of  the  mode  of  using  this  classification  for  the 
analysis  of  a  given  system,  let  us  take  the  results  of  an  extended 
analysis  ^  of  the  institutions  of  a  particular  homogeneous  group 
of  peoples,  viz.  the  six  principal  Malayan  peoples  of  the  island 
of  Sumatra,  viz.  the  Menangkabao,  the  Battak,  the  Pasemah, 
the  Lampong,  the  Palembang,  and  the  Bengkulais.  These  form 
a  series  of  reference,  or  basis  of  scientific  study  of  type ;  because 
their  homogeneity  is  large  as  to  ethnic  origin,  social  condition, 
and  geographic  relations.  It  has  already  been  pointed  out  (ante, 
§  2,  par.  1)  that  the  jural  system  of  every  people  is  composed  of 
ten  orders  or  fundamental  complexus  of  institutions,  viz.  I.  Forms 
of  Social  Union;  II.  Marriage;  III.  Relationship;  IV.  Domes- 
tic Power ;  V.  Property ;  VI.  Obligations ;  VII.  Succession ; 
VIII.  Political  Institutions;  IX.  Penal  Institutions;  X.  Pro- 
cedural Institutions.  The  stratigraphic  composition  of  a  jural 
system  depends  upon  the  stratigraphic  composition  of  these 
ten  fundamental  complexus.  For  exhibiting  the  stratigraphic 
composition  of  these  six  systems  in  the  series  of  reference,  the 
following  table  (in  which  the  numerals  I,  II,  etc.,  indicate  the  above- 
named  ten  complexus)  summarizes  the  results  of  a  detailed 
analysis : 

From  this  table  it  appears  that,  in  the  jural  systems  of  peoples 
studied,  the  gentilic  type  has  a  marked  preponderance.  The 
feudal  type  is  very  weak  among  all  except  the  Palembangs ;  and 
even  in  that  people  the  feudal  preponderance  is  limited  to  political 
institutions  and  to  property,  and  even  in  those  complexus  the 
coefficient  of  concomitance  of  the  gentilic  type  is  high. 

The  systems  examined  can  be  grouped  into  three  classes,  strati- 
graphically:  1.  The  first  includes  the  Menangkabao,  the  Pase- 
mah, and  the  Lampong;  here  the  gentilic  element  is  notably 
developed  and  the  feudal  element  is  weak;^  the  stratigraphic 

1  [This  analysis  occupies  pp.  201-279  of  the  author's  treatise,  and  is 
here  omitted.  —  Ed.I 


I 

L 


92 


CRITERIA   OF   LEGAL   EVOLUTION 


[Part  I. 


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Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  93 

formula  for  this  class  becomes:  (Gent.,  Feud.i).  2.  The  second 
comprises  the  Battak  and  the  Bengkulais ;  the  gentilic  element 
is  dominant,  but  the  feudal  element  is  larger  than  in  the  first  class ; 
the  stratigraphic  formula  becomes  (Gent.,  Feud.2).  3.  The  third 
class  comprises  only  the  Palembang;  the  gentilic  element  is  still 
dominant,  but  the  feudal  element  is  also  strong ;  the  stratigraphic 
formula  becomes  (Gent.,  Feud. 3). 

This  example  makes  clear  that  our  stratigraphic  analysis  rep- 
resents the  greatest  step  of  progress  for  jural  ethnology.  Only 
by  the  aid  of  this  instrument  can  that  science  progress  beyond 
its  descriptive  genetic  stage  and  become  an  explicative  science. 
By  stratigraphic  analysis,  an  ethnologic  genealogy,  psychology, 
and  philosophy  of  law  become  possible. 

(Ill)    Genealogy 

§  8.  Significance  of  Jural  Genealogy.  Jural  Genealogy  is 
that  branch  of  special  jural  ethnology  {ante,  §  1)  which  studies 
the  development  of  the  jural  system  of  a  particular  people.  It 
is  founded  on  stratigraphy;  for  its  criteria  and  its  methods  de- 
pend upon  the  ascertainment  of  the  intrinsic  composition  of  the 
institutions  of  the  jural  system,  and  therefore  of  the  fundamental 
types  in  that  system. 

In  studying  the  evolution  of  an  institution,  the  variations  of 
its  structure  fall  into  two  classes,  viz.  extrinsic  and  intrinsic. 
Intrinsic  variations  are  those  which  correspond  to  changes  in  the 
intensity  (ante,  §  5,  par.  II)  of  the  jural  types  coexisting  within 
the  institution.  Extrinsic  variations  are  those  which  affect  the 
form  of  the  institution  but  do  not  correspond  to  any  change  in 
such  relation  of  intensity  in  the  component  t>^es.  Thus,  the 
latter  sort  are  morphologic,  and  the  former  are  stratigraphic. 

This  classification  may  be  illustrated  by  an  example  from  the 
institution  of  Loan  in  ancient  India.  As  wull  be  later  seen,  the 
evolution  of  that  institution  shows  that  its  composition,  in  the 
several  periods  forming  the  whole  course  of  its  development,  may 
be  represented  by  the  following  stratigraphic  formulas  :  1st  period, 
(Gent.,  Feud.o) ;  2d  period,  (Gent.,  Feud.i) ;  3d  period,  (Gent., 
Feud.2) ;  4th  period,  (Gent.,  Feud. 3) ;  5th  period,  (Feud.,  Gent.  i_2 ; 
6th  period,  (Feud.,  Gent.i).  An  inspection  of  these  formu- 
las shows  at  once  that  the  Loan  of  ancient  India,  in  passing 
through  the  six  periods  named,  exhibits  variations  corresponding 
to  changes  in  the  relative  intensity  of  the  jural  types  entering 


94  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

into  the  institution.  They  are  thus  stratigraphic  or  intrinmc 
variations.  These  historic  periods  covered  a  long  space  of  time, 
each  one  occupying  several  centuries ;  and  the  above  stratigraphic 
variations  were  due  to  the  slow  and  gradual  substitution  of  feudal 
for  gentilic  rules,  or  the  addition  of  feudal  to  preexisting  gentilic 
rules.  But  in  each  epoch  also  a  number  of  other  rules  were  formed 
and  disappeared  w^hich  did  not  alter  the  quantitative  relation  of 
the  jural  types  in  the  institution.  They  modified  the  form,  but 
not  the  intrinsic  nature  of  the  institution ;  hence  they  were  merely 
morphologic,  or  extrinsic. 

Stratigraphic,  or  intrinsic,  variations  are  of  much  greater  im- 
portance in  the  evolution  of  an  institution  than  morphologic 
variations;  because  the  former  imply  changes  in  the  process  of 
hierarchic  stratification  of  social  classes,  the  most  fundamental 
jural  fact  in  human  societies.  That  period,  therefore,  in  the 
history  of  an  institution,  a  complexus  of  institutions,  or  a  system, 
during  which  it  preserves  the  same  stratigraphic  composition, 
may  be  termed  its  genealogic  period. 

This  term  is  of  importance.  Hitherto,  the  successive  stages  in 
systems  or  institutions  have  been  marked  off  by  historians  with 
purely  chronological  criteria ;  but  these  can  only  be  superficial  and 
extrinsic.  If  the  idea  of  genealogic  periods  be  adopted,  the  phases 
of  evolution  of  an  institution  or  a  system  may  be  distinguished 
on  the  basis  of  intrinsic  composition  of  the  institution  or  system. 

§  9.  Definition  of  Terms.  The  basal  body  of  jural  norms  in 
any  system  is  the  suh-group  (ante,  §  2,  par.  10) ;  for  all  higher  forms 
are  merely  combinations,  more  or  less  complex,  of  sub-groups. 

(1)  When  two  sub-groups  belonging  to  different  jural  systems 
(or  different  genealogical  stages  of  the  same  system)  have  an 
identical  denomination,^  they  are  homonyms;  when  they  have 
different  denominations,  heteronyms.  For  example,  the  sub-groups 
concerning  the  composition  of  the  royal  tribunals  in  the  first  and 
the  second  periods  of  ancient  India  are  homonyms.  In  the  follow- 
ing studies,  homonyms  only  will  be  considered. 

(2)  When  a  sub-group  shows  in  its  structure  only  one  of  the 
fundamental  types,  it  is  monotypical;  when  it  shows  the  two 
types,  it  is  hitypical.  Since  the  intensity  (ante,  §  4,  par.  (a)  2) 
of  a  type  in  a  given  sub-group  is  the  relation  between  the  number 
of  its  norms  of  that  type  to  the  total  number  of  norms  therein, 
it  follows  that  the  intensity  in  a  bitypical  group  is  given  by  an 
ordinary  fraction  ;    that  the  two  fractions  representing  the  two 

1  [This  term  "denomination"  is  not  explained  by  the  author.  —  Ed.] 


J 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  95 

types  have  the  same  denominator ;  that  their  sum  is  unity ;  and 
that  in  a  monotypic  sub-group  the  intensity  of  the  gentilic  type 
is  1,  and  of  the  feudal  type  is  0. 

(3)  When  two  homonjTuic  sub-groups  have  the  same  types 
and  intensities,  i.e.  the  same  stratigraphic  composition,  they  are 
similar;  otherwise  they  are  termed  dissimilar. 

Hence,  two  similar  homonjTaic  sub-groups  must  be  represented 
by  identical  stratigraphic  formulas ;  and  two  dissimilar  homo- 
nymic  sub-groups  by  different  stratigraphic  formulas. 

(4)  Comparison  signifies  establishing  a  connection ;  and  a 
connection  can  be  established  only  between  homogeneous  elements  ; 
and  this  homogeneity  is  relative  to  the  connection  or  comparison 
that  is  sought.  The  comparison,  therefore,  of  two  sub-groups, 
as  to  their  stratigraphic  composition,  their  homogeneity,  i.e.  com- 
parability, is  relative  to  that  composition,  i.e.  the  nature,  posi- 
tion, and  intensity  of  the  component  types.  Whenever  there- 
fore the  intensity  of  the  types  in  one  group  is  only  a  variation  of 
the  intensity  of  types  in  another  group,  they  become  comparable. 

Hence,  two  sub-groups  are  comparable  if  the  intensities  of 
the  component  types  of  the  one  can  be  regarded  as  variations  of 
the  corresponding  t}T)es  of  the  other. 

This  fundamental  proposition  we  call  the  "  principle  of  the 
comparability  of  sub-gro2ips."  And  the  foregoing  principle  in 
par.  (3)  we  call  the  "  principle  of  the  stratigraphic  representation 
of  sub-groups.   .   .   ."^ 

Starting  with  these  two  principles  of  comparability  and  the 
stratigraphic  representation  of  sub-groups,  and  remembering 
that  without  rectifying  beforehand  the  relative  stratigraphic  for- 
mulas no  comparison  would  be  valid,  the  following  method  enables 
us  to  make  the  sub-groups  comparable  and  to  rectify  the  relative 
stratigraphic  formulas : 

To  compare  several  systems  (or  distinct  phases  of  a  single 
system,  or  corresponding  parts  of  different  systems),  from  the 
stratigraphic  point  of  view,  designate  the  systems  as  T,  T',  T", 
T'"  .  .  .\  T  being  the  most  complex  term,  i.e.  the  one  having 
the  largest  numbers  of  sub-groups.  Call  this  term  of  the  series 
the  principal,  and  the  others  secondary.  Draw  up  a  table  showing 
for  the  several  sub-groups  of  each  system  the  norms  which  are 
intrinsically  gentilic  in  type,  the  norms  inherently  feudal  in  type, 

^  [At  this  point  the  author  elaborates  some  more  detailed  canons; 
but,  owing  to  his  failure  to  clarify  his  meaning  by  examples,  it  is  useless 
to  reproduce  his  principles.  —  Ed.] 


96  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

and  the  total  norms  occurring.  Arrange  this  table  so  as  to  show 
in  the  first  column  the  order-number  of  the  sub-groups,  and  in 
the  second  column  the  name  of  the  sub-groups  belonging  to  the 
principal  term.  In  three  other  columns  show,  for  each  sub-group, 
the  number  of  gentilic  norms,  the  number  of  feudal  norms,  and 
the  total  number  of  norms.  Each  secondary  term  will  also  be 
represented  by  three  columns,  showing  respectively  (corresponding 
to  the  sub-groups  of  the  principal  term)  the  number  of  gentilic 
norms,  the  number  of  feudal  norms,  and  the  total  number  of 
norms.  If  in  any  of  the  secondary  terms  there  are  sub-groups 
which  do  not  occur  in  the  principal  term,  the  three  values  will 
be  designated  by  placing  the  number  and  name  thereof  in  the 
columns  (first  and  second  above)  appropriate  thereto,  and  by 
placing  short  dashes  in  the  three  columns  for  the  principal  term. 
And  if,  on  the  other  hand,  sub-groups  occurring  in  the  principal 
term  are  lacking  in  one  of  the  secondary  terms,  insert  short  dashes 
for  them  in  the  columns  of  that  secondary  term. 

By  studying  this  table,  one  can  evaluate  readily  the  intensity 
of  each  type,  for  the  several  sub-groups,  in  each  of  the  terms 
under  comparison.^  .   .   . 

§  10.  Genealogic  Laws.  The  formula  which  expresses  the 
progress  of  the  variations  of  a  norm,  or  group  of  norms,  in  a  series 
of  stages  of  development  of  a  given  jural  system,  may  be  termed 
its  genealogic  law.  These  variations,  and  their  laws,  may  be 
either  morphologic  or  stratigraphic. 

(a)  The  actual  progress  of  morphologic  variations  cannot  be 
expressed  in  genealogic  laws  unless  morphology  can  reconstruct 
the  entirety  of  the  norms ;  and  this  is  rarely  feasible.  Such  laws 
will,  therefore,  be  usually  hypothetical  only. 

(1)  Form  and  Extension.  In  every  sub-group  of  norms,  the 
nature  of  the  component  rules  is  their  form  (qualitative) ;  the 
number  of  them  is  their  extension  (quantitative). 

If  a  given  sub-group,  in  a  given  stage  of  history,  shows  no 
rules  existing,  we  may  conventionally  represent  its  extension  by  0. 
If,  for  example,  in  studying  a  given  sub-group  during  three  suc- 
cessive historical  periods  A,  B,  and  C,  we  find  that  the  sub-group 
has  5  rules  in  period  A,  then  4  rules  in  period  B,  then  disappears 
entirely  in  period  C,  it  has  an  extension  zero  in  period  C.  Three 
degrees  (as  elsewhere)  sufiice  in  practice  to  evaluate  extension, 
—  maximum,  medium,  and  minimum. 

1  [The  author  here  elaborates  his  use  of  this  method  in  "rectifying" 
the  stratigraphic  formulas  of  secondary  terms.  —  Ed.] 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF  GENERALIZING  97 

(2)  The  morphologic  variations  of  extension  are  positive,  or 
incremental,  when  the  number  of  norms  in  a  sub-group  increase 
in  passing  from  one  stage  to  another ;  and  negative,  or  diminuent, 
if  they  decrease.  The  value  of  such  variation  may  be  expressed 
in  three  degrees,  as  maximum,  medium,  and  minimum. 

(6)  Stratigraphic  variations  also  may  be  classed  into  qualitative 
and  quantitative.  The  former  are  such  changes  as  appear  in  the  na- 
ture and  position  of  the  component  types ;  the  latter  are  such  as 
appear  in  the  number  of  component  norms  inherent  in  each  type. 

Changes  in  the  number,  from  one  period  to  another,  are  varia- 
tions of  intensity  of  the  type;  and  the  terms  positive  or  negative, 
maximum,  medium,  or  minimum,  here  apply  as  before.  If  in  a 
given  sub-group  a  type  does  not  appear  at  all,  its  intensity  is  zero ; 
and  it  is  maximum,  medium,  or  minimum,  according  to  the  num- 
ber of  norms  referable  to  the  type  in  question.  These  variations 
during  successive  periods  can  be  shown  in  tabular  form,  as  in  Part 
III,  post. 

§  11.  Reconstruction  of  the  Oenealogic  Process.  When  any 
part  of  a  jural  system  is  examined  as  it  passes  from  one  historic 
stage  to  another,  the  brusqueness  generally  observable  in  the 
changes  raises  the  doubt  whether  the  gaps  thus  revealed  are 
attributable,  not  to  actual  non-existence  of  the  norms  (or  sub- 
groups of  norms),  but  rather  to  an  imperfection  in  the  sources 
of  information.  Hence,  since  a  complete  representation  of  the 
elements  is  necessary  for  certitude  in  tracing  genealogic  laws,  we  j 
must  determine  whether  the  apparent  lack  of  certain  elements 
is  a  real  one.  If  not,  a  complementary  reconstruction  must  be  1 
attempted. 

As  a  basis  for  such  a  method,  the  following  postulates  must 
be  kept  in  mind  :  (1)  The  evolution  of  a  jural  system  in  successive 
periods  is  generally  regular  and  continuous ;  (2)  The  development 
of  any  morphologic  element,  within  a  given  system  at  any  one  of 
the  periods,  corresponds  to  the  stratigraphic  and  morphologic 
variations  of  the  system  in  the  entire  series,  at  the  particular 
period,  and  especially  to  the  morphologic  and  stratigraphic  com- 
position of  the  particular  element  at  the  periods  immediately  before 
and  after  the  one  in  question,  and  in  the  entire  series. 

One  of  the  most  important  problems  in  the  jural  genealogy 
of  a  specific  people  is  this  one  of  the  complementary  reconstruc- 
tion of  institutions  where  the  sources  for  a  given  period  are  inade- 
quate.    The  available  method  is  illustrated  in  Part  III,  post.^ 

^  [The  author's  exposition  of  it  at  this  point  is  here  omitted.  —  Ed.] 


98  CKITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

When  such  reconstruction  can  be  accompHshed  for  an  entire  jural 
system  during  all  its  periods,  the  generalization  of  its  genealogical 
laws  is  no  longer  merely  hypothetical  but  definitive. 


(IV)   Psychology 

§  12.  Method  of  Studying  Jural  Psychology.^  This  branch 
of  jural  ethnology  has  for  its  object  the  discovery  of  the  ideas  and 
sentiments  prevailing  among  a  given  people,  as  determined  by  a 
consideration  of  its  jural  norms.  A  jural  practice  is  a  habit  of 
action  leading  to  jural  acts,  and  it  must  have  a  psychologic  sub- 
stratum. Two  elements  compose  this  substratum :  (1)  the  series 
of  ideas  and  sentiments  which  predispose  the  individual  agent  to 
doing  the  act;  (2)  the  series  of  ideas  and  sentiments,  prevailing 
in  the  community,  to  which  the  act  must  conform  in  order  to  be 
regarded  as  permissible. 

Ethnologic  psychology,  for  the  specific  people,  must  determine, 
not  only  the  psychologic  data  for  the  particular  system,  but  also 
the  area  of  diffusion  of  those  data  within  each  people.  But  their 
ascertainment  is  difficult,  and  is  not  always  feasible. 

For  solving  the  fundamental  problem  of  special  jural  ethnology, 
the  following  method  has  been  devised  by  us.  The  observer  is 
to  ascertain  the  collective  ideas  and  sentiments  which  fulfil  the 
following  conditions,  as  to  each  norm :  (1)  Their  compatibility 
with  the  expression  of  the  norm ;  (2)  their  compatibility  with  the 
stratigraphic  feature  of  the  norm;  (3)  their  compatibility  with 
the  genealogic  process  of  the  norm  (if  Imown) ;  (4)  their  com- 
patibility with  the  general  psychologic  conditions  (so  far  as 
known)  of  the  people  in  question,  or  of  the  portion  where  the 
norm  obtains;  (5)  their  compatibility  with  the  general  social 
conditions  (so  far  as  known)  of  the  people,  or  portion  thereof, 
and  particularly  their  economic,  religious,  and  moral  conditions. 

Plainly,  if  there  is  a  body  of  collective  ideas  and  sentiments 
which  fulfil  simultaneously  all  these  conditions,  such  ideas  or 
sentiments  are  the  psychologic  data  or  postulates  of  the  norm  in 
question. 

(V)   Philosophy 

§  13.    Method  of  Studying  Jural  Philosophy.^     Jural  ethnologic 
philosophy,  which  is  the  most  advanced  and  difficult  branch  of 
1  [This  chapter  has  been  here  much  abbreviated.  —  Ed.]  2  j^id. 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  99 

the  science,  has  for  its  object  the  determination  of  the  causes  of 
jural  phenomena. 

When  we  can  trace  a  given  norm  in  its  entire  course  of  develop- 
ment in  a  particular  system,  we  find  it  presenting  the  following 
series  of  phases :  formation,  conservation,  variation,  transforma- 
tion, extinction.  In  the  first  period,  it  takes  its  origin ;  in  the 
second,  it  preserves  its  fundamental  traits ;  in  the  third,  it  under- 
goes changes,  which  do  not  affect  its  fundamental  traits;  in  the 
fourth,  the  changes  do  affect  its  fundamental  traits;  and  in  the 
last,  the  norm  itself  disappears.  The  causes,  therefore,  which 
determine  these  several  phases,  may  be  termed,  respectively, 
generative,  conservative,  modificative,  transformative,  and  dissolutive. 
The  complete  causal  study  of  the  norm  requires  a  determination  of 
all  of  these.     Ordinarily,  such  a  complete  study  is  not  feasible. 

The  method  of  study  of  any  one  of  these  groups  of  causes  is  the 
"  method  of  predefined  limits  " ;  it  is  analogous  to  that  already 
set  forth  for  psychological  study,  but  is  subject  to  more  restrictive 
conditions.  It  consists  in  selecting  hypothetically  one  or  more 
causes,  and  inquiring  whether  they  fulfil  the  following  conditions  : 
(1)  compatibility  with  the  expression  of  the  norm;  (2)  compati- 
bility with  the  stratigraphic  feature  of  the  norm;  (3)  compati- 
bility with  the  genealogic  process  (if  known)  of  the  norm ;  (4) 
compatibility  with  the  general  psychological  conditions  (so  far 
as  known)  of  the  people,  or  portion  thereof;  (5)  compatibility 
with  the  general  social  conditions  (so  far  as  known)  of  the  people, 
or  portion  thereof,  and  particularly  with  its  economic,  religious, 
and  moral  conditions ;  and  (6)  compatibility  with  the  psychologic 
data  of  the  norm.  Whenever  such  causes,  hypothetically  selected, 
fulfil  simultaneously  all  these  conditions,  they  may  be  deemed 
to  be  the  real  causes  of  the  norm  in  question. 

The  sub-group,  being  the  fundamental  body  of  norms,  presents 
the  same  phase  of  development  (when  it  can  be  studied  through- 
out the  course  of  the  jural  system)  as  the  single  norm ;  hence, 
for  the  sub-group,  the  same  classification  of  causes  applies  as  for 
the  norms;  and  hence,  it  can  have  no  other  causes  than  those 
w^hich  affected  the  component  norms,  in  their  formation,  etc., 
up  to  their  extinction.  Similarly,  as  the  larger  aggregations  of 
norms  (groups,  complexus,  institutions,  etc.)  are  composed  of 
sub-groups,  their  causes  can  only  be  those  which  affected  the  sub- 
groups and  (within  them)  the  norms. 

Thus  this  "  method  of  predefined  limits  "  enables  us  ultimately 
to  ascertain  the  causes  controlling  the  entire  jural  system. 


100  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I, 

B.   Comparative  Jural  Ethnology 

The  basis  of  Comparative  (or,  General)  Jural  Ethnology  is 
furnished  by  the  data  of  Special  (or,  Analytic)  Jural  Ethnology 
{ante,  §  1),  i.e.  the  sum  of  results  reached  in  the  jural  morphology, 
stratigraphy,  genealogy,  psychology,  and  philosophy  of  the  specific 
peoples.  Comparative  Jural  Ethnology  seeks  to  determine  the 
principles  of  general  jural  evolution  by  comparing  the  jural 
systems  already  analyzed  individually.  It  has  the  same  five 
branches  as  special  jural  ethnology,  viz.  morphology,  stratigraphy, 
genealogy,  psychology,  and  philosophy. 

§  14.  Comparative  Morphology.  Comparative  morphology 
aims  to  determine  homologies  of  structure  in  the  several  jural 
systems.     Its  method  is  as  follows : 

The  condition  which  makes  comparison  of  two  jural  systems 
possible  is  an  identity  of  degree  in  the  morphologic  scheme  (ante, 
§  2,  par.  6)  of  the  systems.  In  any  exact  comparison,  the 
terms  must  be  so  far  as  possible  homogeneous ;  and  morphologi- 
cal homogeneity  means  uniformity  of  structure ;  and  uniformity 
of  structure  means  identity  of  degree  {ante,  §  1,  par.  10)  in  the 
morphologic  scheme. 

If  we  take  for  comparison  two  jural  systems  of  the  fourth  degree, 
the  more  developed  system  will  be  the  princijMl  term  {ante,  §  10), 
and  the  other  the  secondary  term.  In  a  sub-group  of  norms,  a 
certain  number  of  them  have  a  dominant  importance ;  these  may 
be  termed  the  nucleus  of  the  group.  When  two  homonymic 
{ante,  §  9,  par.  1)  sub-groups  are  compared,  one  from  the  principal 
term  and  one  from  the  secondary  term,  the  norms  common  to  the 
two  sub-groups  are  called  homologous  norms.  The  sum  of  such 
common  norms  is  the  homology  of  the  two  sub-groups. 

Homology  is  perfect,  when  the  homologous  norms  are  identical ; 
imperfect,  when  they  have  merely  an  affinity ;  and  zero,  when  there 
are  no  homologous  norms.  Homology  is  total  when  all  the  norms 
of  the  two  sub-groups  are  homologous;  nuclear,  when  only  the 
norms  forming  the  two  nuclei  are  homologous;  and  partial, 
in  all  other  cases.  The  homologies  of  all  sub-groups,  when 
ascertained,  give  us  the  homologies  of  the  systems. 

Let  us  now  (assuming  that  all  the  jural  systems  to  be  compared 
are  of  the  fourth  degree)  place  all  the  systems  in  a  series;  the 
principal  term  {ante,  §  10)  will  be  the  most  developed  system, 
and  the  secondary  terms  will  include  all  the  other  systems  grouped 
according  to  their  ethnic  families.     By  analyzing  as  above  set 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GEXERALIZING  101 

forth,  we  may  ascertain  the  homologies  in  all  the  homonymic 
sub-groups  of  norms  in  the  entire  series  of  systems. 

We  shall  thus  arrive  at  the  area  of  diffusion  of  a  given  homology. 
It  is  universal,  when  it  exists  among  all  the  peoples  whose  systems 
are  compared ;  or,  at  least,  among  a  number  of  peoples  distrib- 
uted throughout  separate  ethnic  families.  It  is  special,  when 
it  is  found  in  only  a  single  ethnic  family.  If  we  then  take  the 
universal  homologies  discovered  in  sub-groups,  and  coordinate 
them  successively  by  groups,  elemental  complexus,  institutions, 
and  fundamental  complexus  {ante,  §  2,  par.  7,  10),  we  shall  have 
a  system  which  may  be  termed  the  universal  morphologic  system. 
It  might  even  be  called  "  universal  law",  for  it  would  include  the 
elements  common  to  all  jural  systems.  It  would  represent  the 
substructure  of  all  systems  of  positive  law,  and  would  lead  us  to 
the  discovery  of  general  causes  of  law. 

Special  ethnic  morphology,  or  the  coordination  of  special 
homologies  (supra)  found  in  the  jural  systems  of  a  single  ethnic 
family,  is  formed  of  two  ^factors,  viz.  a  series  of  universal  homol- 
ogies, and  a  series  of  homologies  special  to  that  ethnic  family. 
It  forms  the  basis  of  the  jural  system  of  each  of  the  peoples  com- 
posing that  family,  and  it  aids  us  to  define  the  causes  of  jural 
phenomena  there  operating. 

In  each  people,  its  law  is  composed  of  three  factors :  A  series 
of  universal  homologies;  a  series  of  special  (ethnic)  homologies; 
and  a  mass  of  elements  peculiar  to  the  system  of  that  people. 
And  the  first  two  factors  are  generally  of  superior  importance. 

§  15.  Comparative  Stratigraphy.  Comparative  stratigraphy 
has  for  its  aim  the  discovery  of  the  general  principle  of  types  of 
jural  organization.  In  the  chapter  (ante,  §§  3-7)  on  special 
stratigraphy,  we  have  already  sufficiently  explained  the  concep- 
tion of  jural  types  in  its  bearing  on  comparative  stratigraphy. 

Suffice  it  here  to  add  that  although  our  studies  in  special  stratig- 
raphy have  revealed  the  existence  of  only  two  types,  the  gentilic 
and -the  feudal,  yet  the  application  of  stratigraphic  analysis  to  a 
larger  number  of  systems  might  demonstrate  the  existence  of 
other  types. 

§  16.  Comparative  Genealogy.  Comparative  jural  genealogy 
has  for  its  aim  the  determination  of  the  general  process  of  develop- 
ment of  all  the  jural  systems,  as  specifically  analyzed  by  special 
jural  genealogy. 

The  principles  already  set  forth  (ante,  §§  8-11)  as  to  the  genea- 
logic  laws  of  a  specific  system  may  easily  be  extended  to  the  gene- 


102  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

alogy  of  a  series  of  systems.  The  criteria  there  given  {ante,  §§10, 
11)  for  the  comparison  and  rectification  of  stratigraphic  formulas 
become  here  of  prime  importance ;  for  the  origin  of  a  particular 
institution  must  often  be  sought  by  the  aid  of  a  comparison  of 
several  systems. 

The  solution  of  such  a  general  problem  depends  upon  the  solu- 
tions reached  for  the  following  six  partial  problems  :  (1)  to  deter- 
mine the  area  of  diffusion  of  the  institution  in  question ;  (2)  to  de- 
termine the  stratigraphic  composition  of  the  institution ;  (3)  to 
determine  an  institution  of  reference  {post,  §  18)  belonging  to  the  type 
which  is  dominant  in  the  institution  in  question ;  such  institution 
of  reference  must  be  one  that  has  been  fully  studied  and  therefore 
will  enable  us  to  ascertain  the  genetic  process  of  the  institution  in 
question  by  studying  the  relation  between  the  two  institutions; 
(4)  to  determine  the  order  of  succession  between  the  institution 
in  question  and  the  institution  of  reference ;  (5)  to  determine  the 
modes  of  transition  between  the  generating  institution  and  the 
institution  produced;  (6)  to  determine  the  causes  producing  or 
aiding  this  transition. 

Each  of  these  partial  problems  requires  a  special  method  for 
its  solution.^ 

§  17.  Comparative  Jural  Psychology.  Comparative  jural  psy- 
chology has  for  its  aim  three  results  : 

(1)  It  aims,  in  the  first  place,  to  determine  the  psychologic 
homologies  {ante,  §  14)  of  the  systems  already  analyzed  by  special 
jural  psychology  {ante,  §  12),  i.e.  the  postulates  common  to  the 
systems  compared.  The  terms  perfect,  imperfect,  universal,  etc., 
may  be  applied  to  designate  the  corresponding  ideas  in  compara- 
tive jural  psychology.  The  sum  of  the  psychologic  postulates 
(vf  a  given  jural  system  comprises :  {a)  a  series  of  universal  psy- 
chologic homologies;  {b)  a  series  of  special  (ethnic)  psychologic 
homologies ;  (c)  a  series  of  psychologic  elements  peculiar  to  that 
people  or  system ;  the  former  two  being  of  superior  importance. 

(2)  The  second  aim  of  comparative  jural  psychology  is  to  de- 
termine the  psychologic  composition  of  the  fundamental  types 
{ante,  §  3)  of  jural  organization. 

(3)  The  third  aim  of  comparative  jural  psychology  is  to  deter- 
mine the  general  process  of  development  of  jural  ideas  by  com- 
parison of  the  processes  of  particular  systems. 

^  [The  author  here  sets  forth  the  methods  devised  by  him ;  but  as  the 
necessary  illustrative  apphcations  are  found  only  in  other  essays  of  his, 
the  passage  is  here  omitted.  —  Ed.] 


Chap.  II.J  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  103 

§  18.  Comparative  Jural  Philosophy.  Comparative  jural  phi- 
losophy has  for  its  aim  the  determination  of  the  general  causes  of 
jural  phenomena,  by  comparison  of  the  several  systems  already 
analyzed  by  special  jural  philosophy  {anUj  §  13). 

Its  methods  are  as  follows : 

(1)  When  an  institution  has  been  observed  among  a  more  or 
less  extensive  series  of  peoples  {ix.  has  a  broad  area  of  diffusion), 
the  simplest  method  of  determining  its  causes  is  to  study  all 
relations  existing  between  itself  and  the  other  jural  institutions, 
in  those  same  systems;  then  to  eliminate  all  relations  not  clear 
and  definite;  to  coordinate  and  interpret  the  remaining  ones, 
seeking  at  the  same  time  to  reach  the  origin  of  the  relations; 
and  to  determine  the  factors  forming  those  relations.  The  5um 
of  those  factors  is  the  scheme  of  causes  sought  for.^ 

This  method,  of  course,  can  be  used  only  when  the  specific  jural 
systems  studied  as  the  basis  are  known  to  us  (or  can  be  recon- 
structed) in  their  completeness.  It  is  the  method  used  by  us  in 
studying  the  causes  of  the  institution  of  ambilian  marriage  among 
the  Malayan  peoples  {yost,  Part  II,  §  19).^ 

(2)  By  an  extension  of  the  former  method,  we  have  devised 
another  one,  the  most  general  of  all  those  available  for  jural 
ethnology.  It  consists,  briefly,  in  forming  a  fixed  series  compris- 
ing a  certain  number  of  jural  systems  which  fulfil  the  conditions 
of  being  intimately  related  as  to  ethnic  affinity,  geographic  prox- 
imity, and  total  development  of  civilization.  This  we  term  the 
typical  series  of  reference.  We  then  proceed  to  inquire  into  the 
causes  of  the  formation,  conservation,  variation,  transformation, 
and  dissolution  {ante,  §  13)  of  all  the  institutions  in  this  typical 
series  of  reference ;  and  to  generalize  the  results  thus  obtained.  The 
advantage  of  employing  this  typical  series  of  reference  is  that  the 
dangers  of  subjectivism  can  be  avoided,  that  it  requires  a  thorough 
study  of  the  component  elements  of  the  systems  included,  and 
leads  us  to  the  general  theory  of  causes  of  all  the  jural  phenomena. 

The  criteria  for  the  establishment  of  the  typical  series  of 
reference  are :  (a)  the  selection  of  the  peoples  to  be  comprised ; 
(6)  the  method  of  studying  the  institutions  composing  the  systems. 

^  It  is  true  that  this  method,  thus  sketched,  does  not  take  account 
causatively  of  the  entire  social  phenomena  of  the  peoples,  but  seeks  only 
the  relations  between  the  institution  in  question  and  the  other  parts  of 
the  jural  systems.  But  the  latter  relations  are  always  much  the  more 
definite;  and  the  relations  with  general  social  phenomena  can  also  be 
studied  when  the  data  are  available. 

2  [The  author  here  expounds  an  auxiliary  method  applicable  where 
data  are  not  so  fully  available.  —  Ed.] 


104 


CRITERIA    OF   LEGAL   EVOLUTION 


[Part  I. 


(a)  The  systems  to  be  selected  should  represent  all  the  ethnic 
families ;  for  general  causes  can  only  be  discovered  in  institutions 
having  a  universal  area  of  diffusion,  and  universality  of  diffusion 
signifies  a  diffusion  among  all  (or  the  greater  number  of)  ethnic 
families. 

The  ethnic  classification  that  is  open  to  least  objection  is  the 
following :  Aryan,  Semitic,  Hamitic,  Mongolian,  Caucasian, 
Dravidian,  Indo-American,  Arctic,  Malayo-Polynesian,  Papuan, 
and  Bantu.  In  this  grouping,  each  ethnic  family  should  be  rep  ■ 
resented  by  at  least  one  people. 

Further,  each  jural  system  selected  should  present  only  limited 
complexity ;  should  offer  a  not  excessive  mass  of  source-material ; 
should  be  marked  by  a  substantial  preponderance  of  spontane- 
ously formed  practices  over  borrowed  or  ''  received  "  practices ; 
and,  if  possible,  should  be  known  to  us  in  several  successive  periods 
of  development.  Only  this  combination  of  features  will  enable 
us  to  trace  the  general  causes  of  jural  phenomena. 

In  the  present  state  of  knowledge,  the  following  systems  best 
fulfil  the  above  conditions : 


Typical  Series  of  Reference 


Ethnic  Families 

JtJBAii  Systems  1 

Aryan       

|1.  Old  Indie 

Semitic          

Mongolian 

Dravidian 

Caucasian 

Malayo-Polynesian 

Arctic 

[2.  Old  Irish 

3.  Hebrew 

4.  Arab 

5.  Assyrio-Babylonian 

6.  Chinese 

7.  Tamil  (Ceylon) 

8.  Grusian  (Georgia) 

9.  Sumatra  peoples 
10.   Esnuimaux 

Indo-American ;     . 

Papuan     

11.  Aztec 

12.  Australian 

13.  Kabyle 

14.  Kaffir 

Hamitic 

Bantu 

1 

(6)  The  mode  of  studying  each  of  the  systems  in  the  series  is 
this :  (1)  The  study  of  all  of  the  systems  must  be  reduced  to  a 
uniform  method ;  and  (2)  each  system  must  be  examined  in  detail 

^  This  enumeration  is  of  course  provisional  only;  for  the  progress  of 
discovery  in  epigraphy,  paleography,  hnguistics,  archaeology,  and  eth- 
nography, may  at  any  time  make  it  feasible  to  add  or  omit  particular 
systems. 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  105 

from  the  point  of  view  of  morphology,  stratigraphy,  genealogy, 
psychology,  and  philosophy,  in  the  manner  already  set  forth. 
After  the  typical  series  has  been  thus  constructed,  the  causes  of 
each  institution  are  to  be  studied  within  the  series,  and  the  results 
generalized.  We  should  then  be  enabled  to  arrive  at  a  strictly 
scientific  theory  of  the  causes  of  the  evolution  of  law. 


106 


CRITERIA    OF   LEGAL   EVOLUTION 


[Part  I. 


PART  II.    EXAMPLE   OF  THE  METHOD  APPLIED  TO  COM- 
PARATIVE JURAL  PHILOSOPHY 

(I)  Data  to  he  Compared 

§  19.    The  Institution  of  Ambilian  Marriage  in  Malaysia.     In  the 

ethod  already  expounded  for  determining  the  general  causes  of 
an  institution  {ante,  §  18)  we  first  take  a  series  of  reference,  estab- 
lish the  fundamental  lines  of  the  systems  therein  comprised, 
and  the  stratigraphic  composition  of  the  systems,  and  then  search 
jor  the  institution  in  question  within  that  series.  This  involves 
v^  study  of  the  relation  between  the  institution  itself  and  the  other 
institutions  of  the  several  systems  in  the  series. 

For  this  purpose  we  here  select  the  institution  of  ambilian 
marn'o^in  its  relations  to  the  other  institutions  of  the  several 
systems  in  the  Malayan  series.  This  series  of  reference  includes 
the  six  important  Malayan  peoples  inhabiting  the  large  island  of 
Sumatra,  viz.  Menangkabao,  Battak,  Pasemah,  Lampong,  Palem- 
bang,  and  Bengkulai. 

In  the  institution  of  marriage,  the  fundamental  task  of  analysis 
is  to  define  the  jural  relation  of  the  husband  to  the  family  of 
the  wife.  The  several  varieties  may  be  reduced  to  four :  (a)  In 
the  first,  the  husband  enters  the  wife's  family,  becoming  merely 
a  component  member;  (h)  in  the  second,  husband  and  wife 
each  remain  as  before  a  member  of  his  or  her  family ;  (c)  in  the 
third,  the  husband  remains  in  his  original  family,  and  the  wife 
comes  over  into  it,  as  a  mere  component  member;  (d)  in  the 
fourth,  husband  and  wife  separate  from  their  two  families  and 
form  a  new  and  autonomous  family. 

The  first  of  these  forms  has  a  wide  diffusion,  instances  being 
found  in  almost  all  ethnic  families.  The  most  remarkable  and 
characteristic  instance  is  found  among  the  Malays,  where  it  is 
known  as  "  ambil  anak  " ;  here  we  find  the  husband  occupies  in 
the  wife's  family  a  subordinate  and  almost  servile  position.  To 
this  form,  taking  the  name  from  the  purest  instance,  we  give  the 
term  ambilian  marriage. 

Among  the  Menangkabao  of  Sumatra  the  second  of  the  above 
forms  is  the  one  generally  practiced ;  husband  and  wife  continue 
after  the  marriage  to  belong  to  their  original  families  and  to  live 
with  them ;  the  husband  making  visits  to  the  wife  in  her  family's 
house;  and  the  children  belonging  to  the  wife's  family.  This 
form  is  known  as  "  semundo  "  among  the  Menangkabao ;  and  we 
here  term  it  the  semundian  marriage. 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  107 

In  order  to  study  the  relations  between  ambilian  marriage  and 
the  other  institutions,  the  ensuing  tables  of  analysis  will  form  the 
text  for  our  commentary.  For  explanation  of  the  symbols  and 
terms  we  refer  to  our  prior  exposition  {ante,  §  6),  only  recalling 
here  that  the  small  figures  1,  2,  3,  represent  the  three  degrees  of 
an  institution's  or  a  norm's  intensity  {ante,  §  5,  par.  II),  diffusion 
{ante,  §  5,  par.  II),  or  normality  {ante,  §  5,  par.  Ill) ;  ^  and  that 
the  ten  Tables  are  based  on  the  classification  of  institutions 
{ante,  §  2,  par.  1)  that  compose  every  jural  system. 

§  20.  Relation  of  Ambilian  Marriage  to  Forms  of  Social  Aggre- 
gation. Table  I  exhibits  the  relation  between  ambilian  marriage 
and  the  forms  of  social  aggregation.     It  is  obvious, 

(1)  That  the  intensity  of  ambilianism,  in  the  series  of  peoples 
examined,  is  constant ;  and  that  also  there  is  a  constancy  in  the 
forms  of  social  aggregation  presented;  and  in  the  intensity  of  a 
specific  form,  viz.  the  gens ; 

(2)  That  the  maximum  of  intensity  for  ambilianism  coincides 
with  the  maximum  of  intensity  for  the  gens ; 

(3)  That  coexisting  maxima  of  intensity,  diffusion,  and  normal- 
ity for  ambilianism  coincide  with  a  high  intensity  (now  or  perhaps 
somewhat  earlier)  for  the  communal  family ;  and  that  an  attenua- 
tion of  relative  diffusion  and  normality  for  ambilianism  coincides 
with  attenuation  of  intensity  for  the  communal  family ; 

(4)  That  the  high  intensities  for  the  individual  family,  the  tribe, 
and  the  village  are  found  with  weak  relative  diffusion  and  nor- 
mality for  ambilianism. 

§  20  a.  Relation  of  Ambilian  Marriage  to  Other  Forms  of  Mar- 
riage. Table  II  exhibits  the  relation  between  ambilian  and  other 
forms  of  marriage.     It  indicates, 

(1)  That  ambilian  marriage,  in  the  series  of  peoples  examined, 
coexists  with  other  forms;  the  others  being  referable  to  both 
patriarchal  and  matriarchal  schemes  of  relationship,  except  the 
semundian  form,  which  is  purely  matriarchal  and  is  a  direct  sur- 
vival of  the  ambilian  form  ; 

(2)  That  the  intensity  of  the  ambilian  form  remains  constant, 
whatever  the  other  coexisting  forms  may  be ; 

(3)  That  the  relative  diffusion  of  the  ambilian  form  is  con- 
stantly higher  than  the  others,  except  the  semundian ; 

(4)  That  the  variations  in  the  index  of  normality  for  ambilian- 

'  [When  the  ^mall  figures  appear  thus  :  Polygamy  s ;  i ;  s  —  the  first 
figure  signifies  the  intensity,  the  second  the  diffusion,  the  third  the  nor- 
mahty.  When  such  a  figure  is  lacking,  it  is  because  that  quahty  is  at 
zero.  —  Ed.I 


108 


CRITERIA    OF   LEGAL   EVOLUTION 


[Part  I. 


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Chap.  II.]  THE  SCIENTIFIC  METHOD   OF  GENERALIZING  109 

ism  are  in  inverse  ratio  to  the  variations  in  the  index  of  normality 
for  the  other  forms  of  marriage ; 

(5)  That  the  ambihan  form  coincides  directly  with  the  usage 
of  betrothal ;  the  latter  having  a  constant  intensity  and  diffusion, 
independent  of  the  relative  diffusion  and  normality  of  ambilian- 
ism; 

(6)  That  the  ambilian  form  is  associated  constantly  with 
polygyny;  the  latter  showing  a  high  and  constant  intensity 
throughout  the  series;  that  coexisting  maxima  of  intensity, 
relative  diffusion,  and  normality  for  ambilianism  coincide  with 
low  diffusion  for  polygyny;  that  the  instances  of  maximum 
relative  diffusion  for  polygyny  coincide  with  medium  diffusion 
and  minimum  [normality]  ^  for  ambilianism ;  and  that  minimum 
diffusion  for  polygyny  is  found  with  the  same  medium  diffusion 
and  minimum  normality  for  ambilianism  only  when  the  latter 
coexists  with  marriage  by  purchase  and  the  bilateral  (or  cognate) 
marriage ;  ^ 

(7)  That  ambilianism  and  monogyny  have  no  constant  relation ; 
when  it  is  found,  monogyny  has  a  minimum  intensity  and  maxi- 
mum diffusion,  while  poIyg^Tiy  has  a  maximum  intensity  and 
minimum  diffusion ; 

(8)  That  for  ambilianism  adult  age  is  a  necessary  condition ; 

(9)  That  ambilianism  is  constant  with  the  existence  of  exogamy ; 
the  maximum  diffusion  and  normality  of  ambilianism  coexisting 
with  tribal  or  sub-tribal  exogamy,  and  their  medium  degrees 
coexisting  chiefly  with  a  disappearing  exogamy ; 

(10)  That  ambilianism  (except  among  the  Menangkabao) 
coexists  with  the  patriarchal  levirate,  whose  relatively  high  in- 
tensity and  diffusion  is  constant ;  and 

(11)  That,  between  ambilianism  and  the  diffusion  of  divorce, 
no  definite  relation  is  found. 

§21.  Relation  of  Ambilian  Marriage  to  Systems  of  Relation- 
ship. Table  III  shows  the  relation  between  ambilian  marriage 
and  the  systems  of  family  relationship.  It  leads  to  the  following 
conclusions : 

(1)  That  the  constancy  of  intensity  for  ambilian  marriage 
corresponds  to  the  constancy  of  intensity  for  types  of  relation- 
ship (except  that  of  artificial  relationship,  which  in  four  of  the 
peoples  is  uncertain) ; 

^  [This  word  seems  to  have  been  erroneously  omitted  from  the  author's 
printed  text  at  p.  288.  —  Ed.] 

2  [I.e.  the  second  and  third  forms  of  marriage.  —  Ed.] 


no 


CRITERIA    OF   LEGAL  EVOLUTION 


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Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING 


111 


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112  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

(2)  That  the  diffusion  of  ambilianism  is  directly  proportionate 
to  that  of  matriarchy,  and  inversely  to  that  of  patriarchy  and 
cognation  (but,  again,  the  diffusion  of  artificial  relationship  is 
uncertain) ; 

(3)  That  the  normality  of  ambilianism  is  directly  proportionate 
to  that  of  matriarchy,  and  inversely  to  that  of  patriarchy  and 
cognation  (but  again  there  is  uncertainty  as  to  artificial  relation- 
ship). 

§  22.  Its  Relation  to  Domestic  Power.  As  to  the  relation  be- 
tween ambilianism  and  domestic  power,  we  note  ^ 

(1)  That  domestic  power  in  the  ambilian  marriage,  does  not 
include  the  "jus  vitae  ac  necis,"  nor  the  right  of  alienation  of  the 
persons  subject  to  the  power; 

(2)  That  betrothal  is  a  contract  between  the  family  groups  of 
husband  and  wife; 

(3)  That  the  stage  of  consolidation  of  the  household  groups  is 
a  well-advanced  one,  as  shown  by  the  disciplinary  powers  of  the 
group-chiefs  and  by  the  subordinate  position  of  women. 

We  may  therefore  say  that  ambilianism  coincides  with  a  rather 
limited  domestic  power,  and  with  a  high  degree  of  consolidation 
of  family  groups.  ^ 

§  23.  Relation  of  Ambilian  Marriage  to  Property.  Table  V 
shows  the  relation  between  ambilian  marriage  and  the  property 
system.  It  exhibits  (1)  the  type  of  ownership,  (2)  its  disposa- 
bility,  (3)  the  marital  shares,  (4)  the  methods  of  acquisition. 

(1)  Five  types  of  ownership  are  found,  (a)  Feiidal  ownership; 
here  the  land  is  possessed  by  a  privileged  class  as  beneficiary, 
with  specified  dues  payable  to  the  lord,  and  with  the  right  of 
granting  sub-tenures  to  be  held  on  personal  services  and  payments. 
(b)  Sub-tribal  ownership,  (c)  Communal-family  ownership,  (d) 
Family  ownership,     (e)  Individual  ownership. 

(2)  Disposability  is  classed  in  four  degrees,  viz.  absolute,  lim- 
ited (i.e.  by  unimportant  restrictions),  very  limited,  and  non- 
existent; indicated  by  the  figures  3,  2,  1,  0. 

(3)  Marital  shares  reveal  four  types,  corresponding  to  the  four 
types  of  marriage  practiced,  (a)  Strict  semundian;  here  the 
husband  and  wife  in  a  semundian  marriage  {ante,  §  19)  retain 
separate  ownership  of  their  property  possessed  at  the  marriage, 
and  have  common  ownership  of  subsequent  acquisitions  with 

^  [There  should  here  be  a  Table  IV,  but  it  is  lacking  in  the  author's 
text ;  the  data  are  set  forth  in  the  text  of  the  author's  Part  II,  Chap.  VII, 
here  omitteti.  —  Ed.] 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF  GENERALIZING  113 

division  of  income.  (6)  Quasi-semundian;  this  differs  from  the 
preceding  in  not  dividing  the  income  from  acquired  property; 
it  applies  when  the  marriage  is  cognatic  or  bilateral,  (c)  Pa- 
triarchal; here  the  wife  has  no  property  of  her  own,  and  the  hus- 
band is  owner  of  all  family  property ;  it  applies  when  the  mar- 
riage is  by  purchase,  (d)  Amhilian;  here  the  husband  has  no 
property  of  his  own,  and  the  family  property  belongs  to  the  wife 
or  her  family  group. 

(4)  Among  the  modes  of  acquisition  we  find  succession,  exchange, 
sale,  occupation ;  but  their  intensity  and  diffusion  are  not  always 
ascertainable. 

A  study  of  Table  V  leads  to  the  conclusions, 

(1)  That  stability  of  intensity  for  ambilianism  corresponds  to 
stability  of  intensity  and  diffusion  for  sub-tribal  ownership ; 

(2)  That  variation  of  diffusion  and  normality  for  ambilianism 
corresponds  to  variation  of  diffusion  and  intensity  for  communal 
family  ownership; 

(3)  That  variations  of  intensity  and  diffuMon  for  communal 
family  ownership  tend  to  correspond  inversely  with  the  same 
features  for  single-family  ownership,  and  hence  the  variations  of 
diffusion  and  normality  for  ambilianism  (supra,  (2))  are  inversely 
proportional  to  the  same  features  for  single-family  ownership; 

(4)  That  among  the  ambilian  peoples  the  intensity  and  dif- 
fusion of  individual  ownership  (when  it  exists)  is  constantly  at  a 
minimum ; 

(5)  That  feudal  ownership  is  an  exceptional  phenomenon ; 

(6)  That  the  ambilian  marriage-share  system  is  more  widespread 
than  the  others ;  its  intensity  being  proportional  to  the  diffusion 
and  normality  of  the  ambilian  marriage,  and  the  variations  of 
its  intensity  being  in  inverse  ratio  to  the  other  coexisting  types 
(except  the  strict  semundian  form,  which  occurs  however  only 
exceptionally) ; 

(7)  That  there  is  a  marked  tendency  to  the  non-disposability 
of  communal  family  property  and  of  sub-tribal  property;   and 

(8)  That  ambilianism  coincides  with  a  low  number  of  modes 
of  acquisition. 

§  24.  Relation  of  Ambilian  Marriage  to  Obligations.  Table 
VI  shows  the  relation  between  ambilianism  and  the  principles  of 
obligations.  Those  principles  are  grouped  into  six  classes,  (a) 
Capacity  (to  be  obligee  or  obligor)  may  exist  for  a  tribe,  sub-tribe, 
communal  family,  single  family,  or  individual.  (Intensity  here 
signifies  the  importance  of  the  obligations  (jural  relations)  for 


114 


CRITERIA   OF   LEGAL  EVOLUTION 


[Part  I. 


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td 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  115 

which  the  person  or  persons  have  capacity;  diffusion  signifies 
the  number  of  such  relations.)  (6)  Solidarity  may  include  a  tribe, 
sub-tribe,  communal  family,  or  single  family.  (Intensity  here 
signifies  the  importance  of  the  relations  as  to  which  there  is  soli- 
darity; and  diffusion,  their  number.)  (c)  Sources  of  obligation. 
(Here  intensity  signifies  their  social  importance;  and  diffusion, 
the  frequency  of  their  use.)  (d)  Real  and  formal  contracts ;  here 
the  degrees  signify,  for  real  contracts,  the  number  of  them  prac- 
ticed, in  proportion  to  consensual  contracts;  and,  for  formal 
contracts,  the  number  of  them  practiced,  in  proportion  to  informal 
contracts,  (e)  Modes  of  compulsion  for  a  debtor  include  slavery, 
restraint,  and  sequestration  (the  latter  being  termed  strict  and 
quasi,  according  as  it  is  effected  by  public  officials  or  not) ;  here 
the  ascertainment  of  intensity  and  diffusion  is  very  difficult. 
(/)  Modes  of  extinction. 
A  study  of  Table  yi  leads  to  the  following  conclusions : 

(1)  Capacity.  Tribal  capacity  is  exceptional.  Sub-tribal  capac- 
ity has  on  the  whole  a  low  figure.  But  capacity  for  the  communal 
family  and  for  the  single  family  is  notably  high.  That  of  the 
communal  family  is  highest  for  the  peoples  among  whom  all  the 
figures  for  ambilianism  are  very  high,  and  is  medium  for  the  other 
peoples  (except  the  Battak).  That  of  the  single  family  is  ex- 
ceptionally lacking;  generally  its  value  is  equal  to  that  of  the 
communal  family;  exceptionally  (among  the  Battak)  it  shows  a 
high  value  where  that  of  the  communal  family  is  low.  Individual 
capacity  shows  throughout  a  minimum. 

(2)  Solidarity.  Tribal  solidarity  is  exceptional.  That  of  the 
sub-tribe  and  lesser  groups  is  formed  constantly.  That  of  the 
domestic  groups  (where  adequate  data  exist)  is  of  a  higher  figure 
than  that  of  the  sub-tribe. 

(3)  Sources  of  Contract.  The  number  of  contractual  forms 
is  small.  Their  value  (when  ascertainable)  is  limited;  except 
for  loan  and  pledge,  which  have  constantly  a  high  intensity  and 
medium  diffusion,  and  also  betrothal,  which  has  constantly  high 
values. 

(4)  Real  and  Formal  Contracts.  These  have  generally  a  high 
value  throughout. 

(5)  Modes  of  Compulsion.  Slavery  of  the  debtor,  which  is 
found  among  all  the  peoples,  shows  always  a  high  intensity  and  a 
medium  diffusion.  The  other  forms  of  compulsion  are  exceptional. 
Quasi-sequestration  (without  intervention  of  the  chiefs)  has  a 
higher  value  than  the  other  variety. 


116 


CRITERIA   OF   LEGAL  EVOLUTION 


[Part  I. 


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Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  117 

(6)  Extinction  of  obligations.  Payment  is  the  only  mode, 
and  it  shows  constantly  a  maximum  of  intensity  and  of  diffusion. 

§  25.  Relation  of  Ambilian  Marriage  to  Inheritance.  Table 
VII  shows  the  relation  between  ambilianism  and  inheritance. 
The  subject  of  inheritance  may  be  divided  under  four  heads. 
(1)  Modes  of  inheritance.  Here  there  are  three  varieties.  In 
the  community  variety,  the  thing  inherited  is  the  office  of  chief 
of  the  group;  the  transmission  of  the  property  is  merely  an  in- 
cident of  this.  In  the  patrimonial  variety,  it  is  the  property  that 
is  transmitted,  not  the  office  of  chief.  In  the  mixed  varieties, 
features  of  both  of  the  first  two  varieties  are  found ;  when  one 
or  the  other  predominates  in  its  features,  we  term  it  community- 
mixed  or  patrimonial-mixed.  (2)  Divisibility  of  heritage.  Ac- 
cording as  this  feature  is  lacking,  or  affects  a  small  part  or  an  equal 
part  (to  the  indivisible)  or  a  greater  part,  we  indicate  it  thus: 
divis.Q-,  divis.^;  dims.2;  divis.^.  (3)  Marital  inheritance.  Here 
there  are  three  varieties,  (a)  In  the  semundian  variety,  on  the 
death  of  one  spouse,  the  acquests  held  in  common  are  divided 
between  the  survivor  and  the  family  of  the  deceased ;  the  latter^s 
own  property  goes  to  his  family.  This  system  applies  where  the 
marriage  was  semundian,  or  was  cognatic  or  bilateral.  (6)  Am- 
hilian.  Here  the  husband  inherits  nothing,  (c)  Patriarchal.  Here 
the  wife  inherits  nothing.  (4)  Vocational  inheritance.  This  may 
be  agnatic  (going  to  the  agnates),  matriarchal  (going  to  the  ma- 
ternal relatives),  or  bilateral  (going  to  the  relatives  on  both  sides). 

From  a  study  of  Table  VII,  the  following  conclusions  emerge : 

(1)  The  mode  of  succession.  Almost  universally  observed  is 
the  community-mixed.  The  patrimonial-mixed  is  exceptional, 
and  coincides  with  the  maximum  of  autonomy  for  the  single 
family  and  with  the  disappearance  of  the  communal  family. 

(2)  Divisibility  of  heritage  has  regularly  a  medium  value.  When 
a  low  value  exceptionally  occurs,  it  coincides  with  a  high  value 
for  all  the  indices  of  ambilianism.  When  a  high  value  exception- 
ally occurs,  it  coincides  with  a  high  intensity  for  the  single  family 
and  with  the  disappearance  of  the  communal  family. 

(3)  Marital  inheritance.  All  three  varieties  are  represented. 
The  intensity  and  the  diffusion  of  the  ambilian  and  the  semundian 
varieties  are  regularly  in  proportion  to  the  development  of  the 
ambilian  and  of  the  semundian  (or  cognatic)  marriages  respec- 
tively. For  the  patriarchal  variety,  on  the  other  hand,  the  in- 
tensity and  the  diffusion  are  in  inverse  ratio  to  the  development 
of  ambilian  marriage. 


118 


CRITERIA   OF   LEGAL  EVOLUTION 


[Part  I. 


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Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  119 

(4)  Vocational  inheritance.  All  three  varieties  are  found.  The 
intensity  and  the  diffusion  of  the  matriarchal  variety  are  directly 
in  proportion  to  the  development  of  ambilianism.  For  the  agnatic 
and  the  cognatic  varieties,  on  the  other  hand,  the  intensity  and 
the  diffusion  are  in  inverse  ratio  to  ambilianism. 

§  26.  Relation  of  Aznbilian  Marriage  to  Political  Institutions. 
Table  VHI  shows  the  relation  between  ambilianism  and  political 
institutions.  The  latter  are  grouped  under  five  heads.  From  a 
study  of  the  Table  we  conclude : 

(1)  Political  organs.  Those  most  frequently  met  with  are  the 
assemblies  of  the  tribe  and  of  the  village;  the  village  assembly 
is  rare ;   other  organs  are  exceptional. 

(2)  Functionality.  That  of  the  sub-tribal  assembly  is  con- 
stantly higher  than  that  of  all  others;  it  reaches  its  maximum 
value  with  peoples  showing  a  maximum  of  intensity,  diffusion,  and 
normality  for  ambilianism. 

(3)  Social  stratification.  The  minimum  for  this  process  coin- 
cides with  the  maximum  of  intensity,  diffusion,  and  normality 
for  ambilianism ;  while,  on  the  other  hand,  medium  or  high 
values  for  this  process  correspond  in  general  to  medium  values 
of  diffusion  and  minimum  values  of  normality  for  ambilianism. 

(4)  Public  sentiment.  Throughout  the  series,  the  political 
efficacity  of  collective  sentiment  is  very  high. 

(5)  Cohesion,  i.e.,  the  degree  of  consolidation  of  the  social 
formations  (gens,  tribe,  etc.)  above  the  communal  family.  In 
all  the  peoples  of  the  series,  the  cohesion  of  the  gens  is,  in  intensity, 
higher  than  that  of  the  other  forms  (outside  of  the  village).  The 
maximum  of  intensity  for  sub-tribal  cohesion  coincides  with  the 
maximum  of  intensity,  diffusion,  and  normality  for  ambilianism. 

§  27.  Relation  of  Ambilian  Marriage  to  Penal  Institutions. 
Table  IX  shows  the  relations  between  ambilianism  and  penal 
institutions.  The  subject  may  be  grouped  under  four  heads. 
A  stud}'  of  the  Table  permits  the  following  conclusions : 

(1)  Responsibility.  Where  responsibility  is  independent  of 
the  "  malus  animus  "  of  the  culprit,  we  indicate  it  as  Dep.  q;  where 
dependent  upon  it,  as  Dep.i.  Throughout  the  series,  responsibility 
is  found  not  to  be  based  on  the  culprit's  evil  intent. 

(2)  Kijids  of  Offenses.  Here  intensity  signifies  the  importance 
attributed  by  a  people  to  a  given  kind  of  act  as  criminal.  The 
number  of  criminal  offenses  is  found  to  be  very  limited.  In  the 
group  of  peoples  comprising  the  Menangkabao,  the  Pasemah, 
and  the  Lampong,  the  number  of  criminal  offenses  is  lower  than 


120 


CRITERIA    OF   LEGAL  EVOLUTION 


[Part  I. 


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Chap.  II.]  THE  SCIENTIFIC  METHOD   OF  GENERALIZING  '   121 

that  observed  in  the  group  comprising  the  Battak,  the  Palembang, 
and  the  Bengkulai. 

(3)  Methods  of  Penal  Repression  for  Inter-groupal  Offenses. 
For  offenses  committed  against  members  of  the  group  to  which 
the  offender  belongs,  we  find  the  following  modes  of  repressive 
action :  The  endo -familial  vendetta,  mediate  or  immediate;  the 
endo-gentilic  vendetta,  mediate;  the  divine  vendetta.  Throughout 
the  series,  we  find  the  immediate  endo-familial  vendetta  employed 
{i.e.  vendetta  by  the  family  itself). 

(4)  Methods  of  Penal  Repression  for  Extra-Groupal  Offenses. 
For  offenses  committed  against  persons  outside  of  the  group, 
we  find :  Vendetta,  composition,  public  penalty,  (a)  For  the 
vendetta,  high  intensity  signifies  that  its  exercise  is  not  limited 
by  restraints  of  social  power;  medium  and  minimum  intensity 
signify  that  there  are  such  restraints,  (b)  For  composition, 
intensity  signifies  the  degree  of  social  consolidation  involved; 
it  is  maximum  when  the  acceptance  of  the  offered  composition  is 
obligatory ;  medium,  when  such  acceptance  is  imposed  by  public 
opinion  but  is  not  legally  necessary;  and  minimum,  when  its 
acceptance  rests  wholly  in  the  choice  of  the  victim  or  his  group. 
(c)  For  public  penalties,  intensity  is  high  if  their  infliction  is  not 
complicated  with  features  of  the  vendetta  principle  or  the  com- 
position principle;  medium,  if  such  features  appear  but  are  un- 
important; minimum,  when  they  are  dominant.  Normality, 
for  public  penalties,  is  the  value  attributed  to  the  specific  kind 
by  public  opinion. 

Throughout  the  series,  the  common  methods  of  penal  activity 
are  the  vendetta  and  the  composition.  The  peoples  may  be 
grouped  into  two  classes,  with  reference  to  composition  and  public 
penalties;  the  Menangkabao,  Pasemah,  and  Lampong  forming 
one  group,  and  the  Palembang,  Battak,  and  Bengkulai  the  other. 
In  the  first  group,  the  value  of  composition  is  higher  than  in  the 
second ;  and  public  penalties  are  entirely  lacking  in  the  first, 
but  are  constantly  found  in  the  second.  Moreover,  the  higher 
values  for  composition  coincide  chiefly  with  the  maximum  values 
for  ambilianism;  the  lower  values  for  composition  coincide  with 
the  lowest  values  for  ambilianism.  And,  finally,  the  employment 
of  public  penalties  coincides  in  general  with  the  lowest  values  for 
ambilianism,  and  the  absence  of  public  penalties  with  the  highest 
values  for  ambilianism. 

§  28.  Relation  of  Ambilian  Marriage  to  Procedural  Institutions. 
Table  X  shows  the  relation  between  ambilianism  and  procedural 


122 


CRITEKIA    OF   LEGAL   EVOLUTION 


[Pabt  I. 


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Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING 


123 


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124  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

institutions.  In  this  Table,  four  headings  are  used  for  those 
institutions  :  (1)  Type  of  procedure.  There  are  two  pure  types 
of  procedure,  the  arbitral  and  the  coercive.  But  ordinarily  the 
system  of  a  given  people  contains  elements  of  both ;  such  a  sys- 
tem we  term  mixed;  and  further  mixed-arbitral  and  mixed-coercive , 
according  to  the  preponderance  of  one  or  the  other  type. 

(2)  The  evolutionary  stages  of  procedure  are,  broadly  speaking, 
two,  viz.  the  priestly-magic  stage,  and  the  positivistic  stage ;  in  the 
former  the  procedure  is  regarded  as  a  series  of  superstitious  cere- 
monies leading  to  an  invocation  of  supernatural  judgment  {e.g.  the 
ordeal) ;  in  the  latter,  it  has  come  to  be  regarded  as  a  series  of 
rational  steps  leading  to  a  decision  by  human  beings.  Usually 
a  system  which  has  arrived  at  the  latter  stage  has  retained  some 
elements  of  the  former;  where  such  elements  are  numerous  and 
important,  the  system  is  here  noted  as  "  positive-magical."  (3) 
Organs  of  jurisdiction.  These  are  termed  tribal,  sub-tribal,  or 
communal-household,  according  as  the  organs  are  the  chiefs  or 
assemblies  of  those  respective  groups.  Intensity  here  signifies 
the  value  of  the  action  of  these  respective  forms.  (4)  Parties. 
These  may  be  individuals,  domestic  groups,  or  higher  aggregations. 

A  study  of  Table  X  leads  to  the  following  conclusions : 

(1)  Types  of  procedure.  The  type  met  with  in  the  peoples 
here  concerned  is  uniformly  the  mixed-arbitral  type. 

(2)1  Evolutionary  stages.  The  positive  stage  of  evolution  has 
been  reached  in  all  of  them ;  but  it  retains  remarkable  and  impor- 
tant elements  of  the  priestly-magic  stage. 

(3)!  Organs  of  jurisdiction.  Generally,  in  the  peoples  examined, 
organs  of  tribes,  sub-tribes,  and  communal-households  are  found 
all  three  coexisting;  the  first  with  medium  intensity,  the  second 
with  maximum,  and  the  third  with  minimum  intensity. 

(4)  Parties.  The  parties  are  the  communal  households;  in 
the  Battak,  the  single  families  (and  possibly  also  among  the  other 
peoples). 

(II)   Causes  of  Ambilian  Marriage  as  Exhibited  in  the  Series  of 

Reference 

§  29.  Inductive  Determination  of  the  Factors  of  Causation. 
Following  to  the  next  step  in  our  method,  we  may  now  study 
the  relations  of  fact  thus  disclosed,  and  seek  to  discover  the  primi- 
tive factors,  leading  to  those  relations.  These  factors  will  be  the 
generative  causes  {ante,  §  13)  of  ambilianism. 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  125 

We  must  at  the  outset  point  out  that  many  of  the  above  rela- 
tions are  too  indefinite  or  too  casual  to  serve  as  a  basis  for  inference. 
But  a  comparison  of  the  more  certain,  obvious,  and  definite  rela- 
tions will  yield  precise  results. 

(1)  Before  proceeding  to  this  study  of  the  inferences  to  be  drawn 
from  other  jural  institutions,  however,  we  must  have  in  mind 
the  economic  conditions  of  the  peoples  in  question.  The  economic 
resources  of  Malays  of  Sumatra  are  relatively  limitless.  The 
number  and  the  density  of  the  population  are  low ;  but  its  demands 
are  satisfied  by  a  flourishing  agriculture,  abundance  of  fish,  com- 
merce, piracy,  pastoral  arts,  and  the  raising  of  domestic  fowls. 
There  are  also  forests  of  great  expanse,  supplying  products  freely 
and  richly  available  to  all.  The  labor  needed  for  the  utilization 
and  preservation  of  these  resources  is  considerable;  while  the 
tools  used  are  defective  and  few,  in  contrast  to  the  multiple  forms 
of  industry  calling  for  human  labor.  That  labor  is  applied  to 
agriculture,  fishing,  pasturage,  metallurgy,  house-building,  weapon- 
making,  boat-making,  navigation,  textile  work,  commerce,  prepa- 
ration and  preservation  of  food,  and  all  the  domestic  occupations. 
Thus  the  ambilian  marriage  is  found  in  communities  having 
relatively  limitless  economic  resources,  but  requiring  a  large  quan- 
tity of  labor  to  utilize  and  conserve  them. 

Now,  in  the  first  place,  since  these  peoples  have  occupied  their 
present  territories  for  a  very  long  time  past,  the  above  two  features 
must  have  been  of  even  greater  extent  and  importance  than  at 
present;  for  the  resources  must  have  been  relatively  more  ex- 
tensive for  a  less  density  of  population,  and  the  quantity  of  labor 
required  must  have  been  relatively  greater,  when  the  cohesion  of 
social  groups  was  less  and  the  industrial  and  agricultural  technique 
was  more  rudimentary. 

And  in  the  second  place,  the  human  powers  originally  available 
for  each  autonomous  group  must  have  been  originally  inadequate 
for  utilizing  the  economic  resources.  To  this  circumstance  must 
be  attributed  the  widespread  usage  of  increasing  the  group  by 
artificial  relationship.  To  this  circumstance  also  may  be  attrib- 
uted the  universal  practice  of  polygyny ;  for  it  reveals  the  insuf- 
ficient number  of  males.  Exogamy,  also,  which  is  found  through- 
out the  series  of  reference,  is  a  mark  of  the  numerical  weakness 
of  the  peoples  practicing  it ;  for  it  shows  the  felt  need  of  adding 
strength  from  other  social  groups.  (Exogamy,  it  may  be  noted, 
shows  a  maximum  of  intensity  and  diffusion  among  those  peoples 
having  maximum  figures  for  ambilianism.)     The  adult  age  required 


126  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

for  marriage,  and  the  rarity  of  child-betrothal  and  marriage 
(which  is  otherwise  frequent  in  gentilic  peoples),  noticeable  in 
the  series  under  study,  show  clearly  the  need  felt  for  increasing 
their  numbers  by  taking  in  adult  strangers;  such  need  being  a 
consequence  of  the  weakness  in  the  human  forces  needed  for  the 
economic  preservation  of  the  groups. 

Thus,  ambilian  marriage  (universally  diffused,  originally, 
among  these  peoples),  polygamy,  and  exogamy  signified  the 
admission,  into  the  woman's  domestic  group,  of  adult  males  from 
other  family  groups ;  which  was  due  to  the  numerical  weakness  of 
the  male  element  in  the  group ;  which  in  turn  signified  the  inade- 
quacy of  the  human  forces  available  for  utilization  of  economic 
resources. 

(2)  That  a  connection  exists  between  ambilianism  and  the 
gentilic  type  of  society  is  shown  by  the  following  facts  : 

All  the  forms  of  social  groups  in  the  peoples  studied  (except 
the  Palembang)  are  essentially  gentilic;  and  even  in  the  Palem- 
bang,  gentilism  is  important,  and  the  feudal  elements  show  marks 
of  reception  from  outside.  The  forms  of  marriage  —  ambilian, 
semundian,  purchase,  polygyny  —  are  gentilic  in  origin ;  and 
the  cognatic  marriage,  which  belongs  to  the  higher  social  type, 
has  small  diffusion.  The  systems  of  relationship  are  gentilic; 
and  the  supergentilic  system  of  bilateral  relationship  has  little 
vogue.  The  patriarchal  levirate  belongs  to  gentilism.  And  to 
the  same  type  must  be  referred  the  following  institutions :  The 
remarkable  development  of  tribal  and  communal  ownership,  and 
the  weak  development  of  individual  and  single-family  ownership 
(which  acquire  importance  only  when  the  feudal  element  is 
marked) ;  the  indisposability  of  tribal  and  sub-tribal  property  ; 
the  small  number  of  modes  of  acquisition  of  property;  legal 
capacity  of  social  groups,  especially  the  gens  and  the  household 
community;  the  remarkable  intensity  of  the  solidarity  of  the 
latter;  the  small  number  of  kinds  of  contract;  the  notable  de- 
velopment of  realism  and  formalism  of  contracts;  the  simplicity 
of  modes  of  extinction  of  obligations;  the  mixed-communal  type 
of  inheritance;  and  the  tendency  to  indivisibility  of  heritage, 
with  intensity  proportionate  to  ambilianism.  And  finally  the 
gentilic  type  is  observable  in  the  political  institutions  (except 
for  the  Palembang),  as  well  as  in  penal  methods  and  procedure. 

A  causal  relation  must  therefore  be  affirmed  between  ambilian 
marriage  and  gentilic  structure. 

(3)  The  social  importance  of  the  communal  household,  which 


Chap.  IL]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  127 

varies  proportionately  with  ambilianism,  indicates  a  causal  re- 
lation. The  original  autonomy  of  the  communal  household  is 
seen  in  the  fact  that  artificial  relationship  results  directly  in  the 
enlargement  of  these  groups,  and  only  indirectly  in  the  enlarge- 
ment of  the  gens  and  the  tribe.  That  gens-ownership  is  an  indi- 
cation of  the  original  autonomy  of  the  gens  is  generally  conceded  ; 
hence,  ownership  by  the  communal  household  must  also  be  a 
proof  of  its  original  autonomy;  for,  in  the  series  examined,  com- 
munal household  ownership  is  in  intensity  and  social  action  much 
higher  than  gens-ownership.  Other  evidences  of  the  original 
autonomy  of  the  communal  household  are :  The  remarkable  de- 
velopment of  its  legal  capacity ;  its  part  in  system  of  inheritance ; 
correspondence  of  indivisibility  of  heritage  with  the  development  of 
the  communal  household ;  its  importance  in  vendetta,  composition, 
and  judgment ;   and  its  part  in  making  the  marriage-contract. 

(4)  Between  matriarchy  and  ambilianism  a  causal  relation 
is  shown  by  their  direct  correspondence  as  to  diffusion  and  nor- 
mality, and  by  the  inverse  ratio  of  ambilianism  to  other  systems  of 
relationship  (except  artificial  relationship). 

Summing  up :  The  most  clear,  definite,  and  important  rela- 
tions discovered  between  ambilianism  and  the  other  jural  institu- 
tions are  due  to  the  following  factors  :  (1)  Inadequacy  of  human 
forces  for  economic  utilization  of  resources  by  the  social  groups, 
arising  from  numerical  weakness  of  males ;  (2)  existence  of  eco- 
nomic resources  potentially  or  actually  limitless ;  (3)  necessity  of 
a  large  quantity  of  labor  to  utilize  those  resources;  (4)  gentilic 
structure  of  social  groups;  (5)  autonomous  household  commu- 
nities;   (6)  matriarchy. 

Logicians  distinguish  "  cause  '*  from  "  condition."  We  may 
infer  that,  among  the  above  factors,  the  first  is  in  this  sense  the 
cause;  for  the  inadequacy  of  the  strength  required  for  labor  and 
defense  create  the  need  for  reenforcement  of  the  groups  by  in- 
troducing elements  from  without;  and  the  factors  figuring  in 
the  ensuing  five  items  represent  the  conditions  necessary  and  suf- 
ficient for  satisfying  this  need  by  means  of  the  institution  of 
ambilian  marriage. 

§  30.  Deductive  Verification  of  the  Factors  of  Causation.  It 
remains  to  generalize  these  results,  by  deductively  demonstrating 
that  the  institution  under  study  must  necessarily  haw  coTne  into 
existence,  given  all  the  factors  operating  among  the  ambilian 
peoples  of  Sumatra. 


128  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

Now  in  the  most  remote  stages  of  civilization,  victory  in  the 
struggle  for  existence  is  assured  to  those  groups  which  are  most 
numerous.  Groups  which  are  weak,  relatively  to  the  social  mass, 
must  therefore  seek  to  strengthen  themselves.  This  they  do  by  the 
admission  of  outsiders,  as  is  seen  in  the  practice  of  adoption  into 
artificial  relationship,  found  among  gentilic  societies,  particularly 
in  the  most  primitive  stages.  Now  these  groups  are  naturally 
exclusive,  viewing  outsiders  with  a  hostile  eye.  Their  admission, 
therefore,  would  be  due  only  to  some  necessity,  viz.  the  need  of 
notably  increasing  their  strength  for  nourishment  and  defense. 
But  this  presupposes  that  economic  resources  are  available  for 
taking  care  of  this  increase,  —  in  other  words,  resources  relatively 
unlimited,  potentially  or  actually.  Furthermore,  since  gentilic 
or  family-related  groups  lack  the  hierarchical  stratification  of 
social  classes,  the  mode  of  admission  of  outsiders  would  be  one 
compatible  with  this  feature,  —  in  other  words,  would  be  effected 
by  some  form  of  artificial  relationship.  Now  when  these  groups 
are  autonomous  communal  households,  no  active  control  over 
these  new  members  would  naturally  be  feasible,  due  to  the  group's 
weakness,  lack  of  cohesion,  and  relative  isolation ;  unless  the  adop- 
tion took  some  form  of  intimate  union  between  the  new  members 
and  the  native  ones.  Hence  a  most  natural  type  of  such  intimate 
union  would  be  a  marriage  between  a  male  outsider  and  a  native 
group-woman.  And  since  the  new  husband  is  not  a  native  member, 
it  would  be  natural  to  subject  him  to  the  domestic  power  of  the 
chief  of  the  group,  and  to  break  all  his  former  bonds  with  his 
own  native  group.  And  where  the  adopting  group  is  organized 
by  matriarchy,  the  children  of  the  marriage  would  belong  to  the 
maternal  family;  and  the  husband  would  have  neither  marital 
nor  paternal  power  of  his  own. 

Thus  would  come  about  a  type  of  marriage  marked  by  the 
husband's  entry  into  the  wife's  group,  by  his  subordination  to 
the  group-chief,  by  the  attribution  of  the  children  to  the  maternal 
family,  and  by  the  husband's  lack  of  paternal  and  marital  power. 
This  would  result  from  six  conditions:  (1)  numerical  weakness 
of  the  male  element  in  autonomous  groups,  (2)  relatively  limit- 
less economic  resources  of  the  group,  (3)  need  of  much  labor  for 
using  those  resources,  (4)  gentilic  structure  of  the  group,  (5)  au- 
tonomy of  communal  households,  and  (6)  matriarchal  relation- 
ship. 

Now  such  precisely  are  the  features  of  the  ambilian  marriage ; 
and  the  causes  leading  to  it  are  thus  deductively  verified. 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING  129 

III.    Causes    of   Ambilian    Marriage    as    Exhibited    by    General 
Ethnic  Comparison 

§  31.  General  Ethnic  Comparison  as  Confirmatory  of  Pro- 
visional Results.  Of  the  two  empiric  methods  already  expounded 
(ajitc,  §  13)  we  can  use  only  the  second ;  for  the  first  requires  an 
analysis  (even  though  a  summary  one)  to  have  been  already  made 
virtually  of  all  the  known  jural  systems,  and  the  data  for  this  do 
not  yet  exist.  The  second  method  consists  in  showing  that  all 
the  factors  which  operated  as  causes  (of  the  institution  studied)  in 
the  peoples  included  in  the  series  of  reference  are  also  found  to  coexist 
in  all  the  peoples  which  practice  that  institution.  Applying  this 
to  ambilianism,  we  are  to  seek  whether  the  same  six  factors 
operating  to  produce  it  among  the  peoples  of  Sumatra  are  found 
among  all  peoples  where  ambilian  marriage  is  observed. 

Table  XI  shows  all  the  peoples  practicing  pure  ambilian  prin- 
ciples.^ The  peoples  are  grouped  by  ethnic  families.^  All  the 
ethnic  families  are  found  to  be  represented;  which  shows  the 
universality  of  ambilianism.  We  must  now  determine  whether 
(now  or  formerly)  the  six  factors,  already  found  as  causes  in  the 
series  of  reference,  are  also  found  in  all  these  peoples. 

The  table  includes  eighty-one  peoples.  Of  these,  six  must  be 
rejected  for  our  purpose  (viz.  Chinese,  Birmans,  Hebrews,  Quichuas, 
Yucatecs,  and  Ceylon  Khonds)  because  of  high  complexity  of 
their  social  structure,  which  makes  difficult  and  uncertain  the 
determination  of  the  conditions  affecting  ambilianism. 

Table  XII  shows  all  of  the  peoples  in  which  we  have  been  able 
to  reach  a  determination  as  to  the  existence  of  the  conditions  in 
question.^  They  number  forty-three  in  all,  distributed  among  the 
following  ethnic  families:  Malayo-Polynesian,  Papuan,  Dravid- 
ian,  Arctic,  I ndo- American,  Semitic.  The  most  numerous 
group,  twenty-five  in  number,  is  found  in  the  Malayo-Polynesian 
family;  the  least  numerous,  one,  is  found  in  the  Semitic  family. 
In  all  of  them  we  have  demonstrated  the  existence  of  all  six  con- 
ditions, as  w^ell  as  the  correlation  between  the  variations  of  in- 
tensity or  relative  diffusion  or  normality  of  ambilianism  and  the 

^  It  does  not  include  peoples  showing  only  surviving  traces  (not  the 

Eure  form),  for  such  instances  are  of  little  service  in  seeking  for  causes, 
owever  useful  they  may  be  to  show  the  area  of  diffusion. 
2  As  most  of  them  practice  the  regular  ambil  marriage,  we  have  not 
shown  in  detail  the  specific  form  practiced. 

'  [An  appendix  gives  a  list  of  references  to  the  authorities  used  by  the 
author  as  the  basis  of  his  analysis.  In  his  book,  pp.  318-338,  he  supplies 
details  as  to  some  of  them.  —  Ed.] 


130 


CRITERIA    OF   LEGAL   EVOLUTION 


[Part  I. 


variations  of  intensity  or  diffusion  of  the  said  conditions,  particu- 
larly of  matriarchy  and  of  communal  household  autonomy. 

Now,  if  the  total  series  of  peoples  revealing  ambilianism  had 
included  only  the  forty-three  peoples  of  Table  XII  and  the  ten 
peoples  1  of  our  series  of  reference,  all  the  requirements  demanded 
by  our  method  would  have  been  satisfied.  We  should  have 
verified  with  scientific  exactness  the  hypothesis  of  the  general 
causes  of  ambilianism. 


Table  XI. 


General  Ethnic  Comparison:    Peoples  Practicing 
Ambilian  Marriage 


Ethnic  Family 

People 

Malayo- 

1.  Menangkabao     13.  Galela 

24.  Leti 

Polynesian 

2.  Battak                  14.  Tobelorai 

25.   Moa 

3.  Pasemah               15.  Alfuros  (Bum) 

26.  Lakor 

4.  Ogan-Ulu             16.  Watubela 

27.  Babar 

5.  Komering-Ulu     17.  Alfuros  (Ceram) 

28.   Timorlao 

6.  Musi-Ulu              18.  Gorong  and 

29.  Tanembar 

7.  Ranuai                             Ceramlaut 

30.  Flores 

8.  Lampong              19.  Timorai 

31.   Dama 

9.  Bengkulai            20.  Belunai 

32.   Morlock 

10.  Redjang               21.  Luwang 

33.  Pelew 

11.  Enganai                22.  Sermata 

34.  New  Zealanders 

12.  Dyak                     23.  Sumban 

35.  Nukahivan 

Papuan 

36.  Ara                        37.  Murray  Islanders 

Dravidian 

38.  Khonds                42.  Bodo 

46.  Lamana 

(Ceylon)           43.  Dhimal 

47.  Dharwar 

39.  Gonds                   44.  Kader 

48.  Bihapur 

40.  Kuki                     45.  Belgame 

49.  Tipperah 

41.  Bhil 

Mongolian 

50.  Kotsch                  53.  Miao-tseu 

51.  Khasia                  54.  Lapon 

52.  Chinese                 55.  Tungus 

56.  Birman 

Aryan 

57.  Bohemian             58.  Jussafzai 

Arctic 

59.  Esquimaux  (central) 

60.  Esquimaux  (Alaska) 

61.  Kamtschadal 

Indo- 

62.  Mandan               67.  Quichua 

71.  Macusis 

American 

63.  Dakota                 68.  Yukatec 

72.  Waraus 

64.  Knistinaux           69.  Carib 

73.  S.  Amer. 

65.  Wyandot              70.  Arawak 

tropical 

66.  Seminole  (Florida) 

Semitic 

74.  Hebrew  (ancient) 

75.  Bedouin 

Hamitic 

76.  Fulah                                                                                                      1 

Bantu 

77.  Fanti                     79.  Quoja 

78.  Darfur                  80.  Edeeyah 

81.  Bangay 

i[The  reckoning  does  not  quite  tally,  owing  to  certain  inconsistencies 
in  two  or  more  peoples  of  the  series  of  reference  under  a  single  name. —  Ed. J 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF  GENERALIZING 


131 


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132  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

But  in  Table  XI  are  twenty-two  other  peoples/  who  practice 
ambilianism,  but  for  whom  sufficient  data  are  lacking  to  deter- 
mine the  existence  of  the  conditions  in  question  and  the  correla- 
tions between  their  variations  and  those  of  ambilian  marriage. 
But  the  instances  of  adequate  verification  represent  67  per  cent 
of  the  total  instances  which  should  have  been  verified ;  and  if  we 
add  to  the  forty-three  peoples  of  Table  XII  the  ten  peoples  of  the 
series  of  reference,  we  have  fifty-three  instances  of  verification  out 
of  a  possible  total  of  seventy-five  (omitting  the  six  above-named 
as  useless  for  our  purpose),  or  71  per  cent  of  all.  Even  therefore 
the  inability  to  verify  the  hypothesis  in  the  remaining  twenty- 
two  instances  does  not  affect  the  stability  of  the  conclusion;  for 
even  in  the  most  exact  natural  sciences  the  verification  of  hy- 
pothesis to  such  a  degree  is  unusual. 

Moreover  we  have  elsewhere  demonstrated,^  for  twenty-one 
of  the  twenty-two  peoples  not  appearing  in  Table  XII  the  exist- 
ence of  at  least  two  of  the  conditions  leading  to  ambilianism, 
viz.  gentilic  structure  and  matriarchy;  and  for  the  twenty- 
second  one  (the  tropical  peoples  of  South  America)  marks  of  the 
gentilic  structure  and  of  matriarchy  have  been  demonstrated  by 
Schmidt.^  So  that  in  all  the  instances  the  hypothesis  is  verified 
as  to  these  two  of  the  six  conditions.  And  as  to  the  remaining 
conditions,  the  data  that  we  do  possess  may  be  said  to  give  high 
probability  to  their  existence. 

Thus,  the  correctness  of  our  hypothesis  as  to  the  generative 
causes  of  ambilianism  has  been  verified  by  this  method. 

1  [The  reckoning  does  not  quite  tally,  owing  to  certain  inconsistencies 
in  two  or  more  peoples  of  the  series  of  reference  under  a  single  name.  —  Ed.] 

2  "La  condizione  giuridica  del  marito  nella  famigha  matriarcale", 
Catania,  1899. 

3  "Uber  das  Recht  der  tropischen  Naturvolker  Sud-Amerikas " 
C'Zeitschrift  fiir  vergl.  Rechtswissenschaft",  Vol.  XIII). 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF   GENERALIZING  133 

PART   III.    EXAMPLE   OF  THE  METHOD  APPLIED   TO 
SPECIAL  JURAL  GENEALOGY 

§  32.  The  Institution  of  Loan ;  its  Jural  Genealogy  in  Ancient 
India.  The  method  of  studying  special  jural  genealogy,  ex- 
pounded ante,  §§  8-11,  may  now  be  illustrated  by  taking  the 
institution  of  Loan  in  ancient  India. 

The  entire  course  of  ancient  Indian  history  will  be  divided  into 
four  periods :  Dharmasutric,  6th-2d  centuries  B.C. ;  Manavic, 
2d  cent.  B.c.-2d  cent.  a.d.  ;  Yajnavalkyan,  2d-5th  cent.  a.d.  ; 
Naradian,  5th-7th  cent,  a.d.^ 

In  each  of  these  periods,  we  shall  first  study  the  morphology 
and  the  stratigraphy  of  the  Loan.  The  elementary  complexus 
of  norms  {ante,  §  2,  par.  10),  into  which  the  norms  for  loan  are 
classified,  are  six:  A.  Capacity,  active;  B.  Capacity,  passive; 
C.  Formation  of  Contract ;  D.  Kinds  of  Derived  Obligations  (or. 
Modalities  of  Loan) ;  E.  Extinction.  Each  complexus  divides 
into  several  groups  of  norms,  and  each  group  into  sub-groups; 
but  we  shall  here  not  pursue  the  analysis  beyond  the  second 
degree  {ante,  §  2,  par.  6,  10) ;  elsewhere  we  have  set  forth  our 
researches  into  the  details  of  the  fourth  degree.^ 

(I)  Morphology 

We  begin  with  the  morphology  of  the  loan. 

§  33.  The  Dharmasutric  Period.^  A.  Capacity,  active.  Ac- 
tive capacity  {i.e.  the  persons  who  are  capable  of  acquiring  rights 
by  loans)  exhibits  the  following  data : 

Castes.  (1)  In  general,  members  of  the  third  caste,  i.e.  the 
vaisyas,  have  this  capacity.  (2)  Members  of  the  first  two  castes, 
i.e.  the  brahmanas  and  the  kshatriyas,  may  make  loans  excep- 
tionally, w^hen  they  are  in  poverty,  or  when  the  obligor  be- 
longs to  a  class  despised  for  its  origin,  its  creed,  or  its  economic 
status.  (3)  The  king  must  forbid  the  loan  by  castes  to  w^hom 
religious  law  forbids  it.  (4)  The  king  may  impose  the  interest- 
loan  on  vaisyas.  (5)  The  fourth  caste,  i.e.  the  sMras,  are  in- 
capable of  lending  on  interest.  (6)  All  castes  may  lend  gratui- 
tously. 

*  Data  have  been  set  forth  more  fully  in  the  author's  following  essays : 
*'ll  prestito  nell'  India  antica"  ("Rev.  ital.  di  sociologia, "  VII,  1903); 
"L'  oriprine  del  prestito  nel  diritto  Indiano"  (id.,  VIII,  1904);  "La 
genealogia  del  prestito  nel  antico  diritto  indiano"  (id.,  IX,  1905). 

2  "Le  antiche  instituzione  dell'  India." 

'  For  this  period  the  sources  are  the  dharmasutras  of  Apastamba, 
Gautama,  Vasisththa,  and  Baudayana. 


134  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

Persons.  Members  of  the  three  higher  castes,  in  brahmanic 
India  (viz.  brahmanas,  kshatriyas,  and  vaisyas)  were  grouped 
into  four  classes  of  persons,  viz.  students,  family-heads,  hermits, 
ascetics.  Only  the  family-heads  could  make  loans.  Women 
could  not  make  loans;  nor  could  minors.  Thus  it  would  seem 
that  the  domestic  group  was  the  real  legal  person,  and  the  family- 
hiead  acted  as  its  representative. 

B.  Capacity,  passive.  Passive  capacity  {i.e.  the  persons  who 
are  capable  of  receiving  loans  as  obligors)  existed  for  all  castes; 
for  the  authorities  say  that  the  rate  of  interest  payable  varied 
with  the  caste.  But  only  family-heads  could  become  obligors  for 
a  loan;  since  women,  minors,  students,  hermits,  and  ascetics 
were  incapable. 

C.  Formation  of  the  Contract.  For  lack  of  data  in  the  sources, 
we  cannot  discover  a  clear  and  definite  conception  of  consent,  nor 
of  the  forms  required.  Usury  was  a  serious  breach  of  the  religious 
law ;  and  presumably  agreements  for  a  rate  higher  than  the  legal 
one  were  void.  This  indicates  a  sense  of  public  order  and  its 
restrictions  on  contractual  liberty. 

D.  Kinds  of  Obligations  (Modalities).  The  chief  obligations 
were  those  of  the  debtor,  viz.  payment  of  interest,  furnishing  of 
securities,  and  restitution  of  the  thing  loaned.  The  creditor's 
obligations  as  to  interest  and  the  restoration  of  securities  were  of 
secondary  nature.  Sureties'  obligations  were  subsidiary  and 
limited.     The  contract  of  loan  was  unilateral. 

Interest  was  of  two  sorts,  ordinary  and  special.  Ordinary  in- 
terest was  15  per  cent  for  money  loans;  for  other  things,  not 
more  than  J  of  the  value  of  the  thing  loaned.  -  Special  interest, 
i.e.  higher  than  the  ordinary,  had  several  varieties.  Ordinary 
interest  was  payable  monthly,  when  payable  in  installments.  An 
offer  to  repay  the  capital  discharged  the  debtor  from  further 
interest.  The  period  fixed  for  restoration  of  a  thing  loaned  was 
notably  long ;  but  it  might  also  be  short,  or  might  be  extended 
by  agreement. 

The  securities  were  of  two  sorts,  suretyship  and  pledge.  Surety- 
ship took  the  form  of  joint  and  several  obligation.  Pledge  might 
be  either  with  or  without  profits;  in  the  former,  the  creditor 
had  possession  but  could  not  collect  interest ;  in  the  latter,  he  had 
not  possession,  but  received  interest.  A  pledge  could  cover  all 
the  debtor's  property,  movable  and  immovable.  The  pledge 
with  profits  was  virtually  an  antichresis.  Probably  the  pledge 
could  be  furnished  by  a  third  person,  such  as  a  relative.     The 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  135 

creditor  was  responsible  for  the  loss  or  impairment  of  the  pledge 
by  neglect  or  fraud. 

E.  Extinction.  The  modes  of  extinction  were  (1)  payment, 
(2)  extra-judicial  measures,  to  be  examined  in .  considering  the 
Manavic  period. 

§  34.  The  Manavic  Period.^  A.  Capacity,  active.  Here  we 
find  continuing,  for  castes,  all  the  rules  obtaining  in  the  Dhar- 
masutric  period,  with  the  addition  of  a  rule  that  slaves  may  not 
make  loans.  For  persons  and  ages  the  rules  are  also  the  same. 
But  for  sex  certain  differences  are  found.  In  the  former  period, 
women  were  totally  incapable  of  acquiring  rights;  but  in  this 
period  the  incapacity  becomes  less  marked.  The  marriageable 
(but  unmarried)  female  is  incapable,  having  no  property  rights. 
The  married  woman  may  possess  a  property  of  her  own,  known 
as  '*  stridhana",  over  which  she  has  rights  of  use  and  disposal; 
and  this  indicates  that  she  could  loan  it ;  but  it  had  only  a  limited 
importance.  The  widow  had  the  same  rights  over  "  stridhana  " 
as  when  married.  With  their  guardian's  consent,  women  could 
loan  their  property  not  belonging  to  the  "  stridhana." 

B.  Capacity,  passive.  Here,  all  the  rules  of  the  Dharmasutric 
period  continue.  The  differences  are  only  these:  (1)  In  the 
former  period,  the  woman  is  totally  incapable,  while  in  the  latter 
she  has  capacity  as  to  the  "  stridhana  " ;  (2)  in  the  former  period, 
slaves  belonged  to  the  sudra  caste  and  hence  were  capable,  while 
in  the  latter  they  formed  a  special  class,  and  were  incapable. 

C.  Formation  of  Contract.  Here  is  found  an  extension  unknown 
in  the  earlier  period.  The  contract  is  regarded  as  the  result  of 
an  accord  of  the  parties'  wills;  lack  of  consent,  actual  or  pre- 
sumptive, makes  the  contract  void;  minority,  drunkenness,  and 
lunacy  representing  the  latter,  and  fraud  and  violence  represent- 
ing the  former.  Thus  the  internal  state  of  mind  was  the  basis 
of  consent.  The  outward  expression  was  not  required  to  take 
any  ceremonial  forms.  Contracts  violating  the  written  or  cus- 
tomary law  were  void;  thus  revealing  a  sense  of  public  order 
limiting  contractual  liberty. 

D.  Kinds  of  Obligations  (Modalities).  Loan  is  a  real  contract; 
delivery  is  the  completion  of  the  contract.  The  loan  is  still  a 
unilateral  contract;  and  the  same  rules  persist  for  the  derived 
obligations  as  in  the  earlier  period. 

Interest  varies  in  rate  according  to  whether  security  was  given 

^  For  this  period  the  only  authority  is  the  Manava-dharmashastra, 
known  as  the  Code  of  Manu. 


136  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

or  not ;  in  the  former  case,  it  is  15  per  cent  annually ;  in  the  latter, 
24  to  60  per  cent  according  to  the  debtor's  caste.  The  rate  also 
varies,  according  to  the  mode  of  payment ;  the  above  rate  was  for 
payment  by  installments;  otherwise  it  was  much  higher.  The 
variation  according  to  castes  applied  only  for  unsecured  loans  and 
payment  of  interest  periodically;  otherwise  it  was  the  same  for 
all  castes.  The  maximum  of  interest  for  each  kind  of  loan  was 
fixed  by  religious  law;  an  agreement  for  higher  rates  was  void. 
Interest  by  installments  was  payable  monthly.  When  the  term  of 
the  loan  was  very  short,  no  interest  was  demandable ;  nor  after  the 
maturity  of  the  debt,  when  the  term  was  a  year  and  the  principal 
unpaid.  Renewal  of  the  debt,  with  payment  or  capitalization 
of  interest,  was  allowed.  For  the  length  of  the  term,  the  rules  of 
the  former  period  obtained;  but  the  contract  must  always  fix 
the  term. 

As  before,  two  kinds  of  securities  are  found,  regulated  in  sub- 
stantially the  same  way.  Suretyship  may  be  either  judicial, 
extra-judicial,  or  real.  In  the  former  two  cases,  the  surety's  heirs 
are  not  ordinarily  liable,  but  in  the  latter  they  are. 

E.  Extinction.  (1)  Payment  being  the  chief  mode  of  extinc- 
tion, the  creditor  might  employ,  for  obtaining  it,  first,  peaceable 
measures,  and,  later,  more  stringent  ones.  The  custom  of  ''  aka- 
rita  ",  according  to  some  commentators,  consisted  in  the  creditor's 
fasting,  even  until  he  died;  according  to  others,  in  killing  the 
debtor's  wife,  sons,  and  cattle,  and  in  sitting  before  the  debtor's 
door.  Extra-judicial  means  were  fully  recognized  as  permissible ; 
but  only  when  the  existence  of  the  debt  was  not  disputed  by  the 
debtor.  When  in  a  case  brought  before  the  king's  court  the  ex- 
istence and  amount  of  the  debt  are  proved,  the  king  cannot  refuse 
to  hold  the  debtor  liable. 

(2)  The  second  mode  of  extinction  is  the  debtor's  slavery,  and 
takes  place  when  the  debtor  is  totally  without  assets  to  pay.  It 
is  forbidden  when  the  creditor's  caste  is  lower  than  the  debtor's. 
But  the  latter  cannot  be  forced  to  go  into  slavery  for  debt. 

(3)  The  third  mode  of  extinction  is  novation.  It  effects  a 
renewal  of  the  securities.  The  satisfaction  of  the  debt,  whether 
voluntary  or  forced,  effects  the  liberation  of  the  securities,  which 
are  accessory  only. 

§  35.    The  Yajnavalkyan   Period ;  ^  the   Naradian    Period.^     As 

^  The  sources  for  tliis  period  are  the  dharmashastras  of  Vishnu  and  of 
Yajnavalkya. 

2  The  sources  for  this  period  are  the  dharmashastras  of  Narada  and 
(fragments)  of  Brihaspati. 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF  GENERALIZING  137 

the  morphology  of  the  Loan  at  these  two  periods  has  notable 
homologies  {ante,  §  9),  we  shall  treat  them  together. 

xi.  Capacity y  active;  B.  Capacity,  passive;  C.  Formation  of 
the  Contract.  The  elemental  eomplexus  of  norms,  in  these  three 
fields,  are  identical  with  those  of  the  preceding  (Manavic)  period. 

D.  Kinds  of  Obligations  (Modalities).  The  elemental  corn- 
plexus  can  here  be  separated  into  three  groups,  concerning  interest, 
pledge,  and  suretyship  respectively.  In  comparing  the  two  periods, 
we  discover  two  important  facts,  in  all  three  groups,  the  persistence 
in  the  Naradian  period  of  almost  all  the  norms  of  the  Yajnavalkyan 
period,  and  the  addition  of  new  rules. 

Interest.  The  rules  fixing  interest-rates  according  as  the  loan 
is  secured  or  not  are  the  same  for  both  periods ;  as  also  the  rules 
varying  the  rate  for  unsecured  loans  in  inverse  ratio  to  the  debtor's 
social  rank,  fijcing  the  maximum  rate,  the  periodic  payments,  the 
classification  of  kinds  of  interest,  the  immateriality  of  the  debtor's 
caste  for  the  rate  for  secured  loans,  the  permissibility  of  cumula- 
tive payment  of  interest  and  capital,  the  changing  of  gratuitous 
loans  to  interest-bearing  loans  on  specified  conditions,  the  pro- 
hibition of  interest  on  loans  with  pledge-bearing  profits,  the  offer 
to  restore  the  object  of  the  loan,  and  loans  made  to  merchants 
traveling  by  sea  or  in  forests.  The  new  rules  peculiar  to  the 
Naradian  period  are  very  detailed.  They  concern  the  limit  of 
interest  varying  according  to  the  thing  loaned;  the  distinction 
between  the  legal  and  the  moral  legitimateness  of  compound 
interest;   and  gratuitous  loans. 

Pledge.  The  rules  common  to  both  periods  for  the  pledge  are 
those  which  recognize  the  three  kinds,  profit-bearing,  non-profit- 
bearing,  and  antichresis,  the  creditor's  liability  for  the  negligent 
loss  of  the  pledge  and  for  unlawful  use  of  it,  the  creditor's  non- 
liability for  loss  by  act  of  God  or  of  the  king ;  the  inapplicability 
of  title  by  prescription ;  the  recognition  of  the  real  nature  of  the 
pledge ;  the  prohibition  of  the  debtor's  slavery ;   etc. 

Suretyship.  The  same  rules  for  suretyship  exist  in  both  periods, 
with  the  addition  (in  the  second  period)  of  rules  showing  a  marked 
tendency  to  lessening  the  surety's  responsibility. 

E.  Extinction.  In  the  Yajnavalkyan  period,  the  principal 
mode  of  extinction  is  the  restitution  of  the  goods  loaned  or  their 
equivalent.  The  creditor  may  resort  to  any  measures,  including 
extra-judicial  ones,  for  this  purpose.  When  a  suit  is  brought  and 
the  creditor  wins,  the  debtor  must  pay  to  the  king,  by  way  of  fine, 
10  per  cent  of  the  value  of  thing  loaned.  —  Slavery  of  the  debtor 


138  CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

was  another  mode  of  extinction,  but  not  when  he  was  a  brah- 
man. Novation  was  recognized.  Creditors  were  classified,  by 
a  sort  of  judgment;  payment  must  be  first  made  of  claims  of 
brahmans,  then  of  the  king,  and  lastly  of  other  persons. 

In  the  Naradian  period,  the  principal  mode  of  extinction  is  still 
restitution.  As  in  the  earlier  (Manavic)  period,  the  creditor 
may  use  amicable  measures,  judicial  proceedings,  the  "  akarita," 
fraud,  or  violence.  Extra-judicial  measures  may  be  resorted  to 
only  when  the  claim  is  admitted  or  not  disputed  by  the  debtor; 
if  used  otherwise,  the  creditor  is  fined.  A  debtor  may  obtain 
from  the  judge  a  postponement  of  payment,  when  good  reasons 
exist.  For  a  part  payment,  the  creditor  must  give  a  receipt ;  and 
on  complete  satisfaction  he  must  either  restore  the  instrument  of 
debt  or  execute  a  release.  If  the  creditor  violates  this  law,  in 
the  former  case  he  forfeits  the  remainder  of  the  claim,  and  in 
the  latter  case  he  pays  the  debtor  the  amount  of  interest  on  the 
sum  paid  by  the  latter. 

I  The  second  mode  of  extinction  is  the  enslavement  of  the  debtor ; 
here  there  must  be  an  instrument  containing  the  names  of  the 
parties,  of  their  castes,  and  of  their  neighbors,  as  well  as  the 
amount  and  the  terms  of  the  loan. 

Thirdly,  novation  could  apparently  be  imposed  by  the  judge, 
on  certain  conditions.  In  that  case,  all  the  securities  continue 
in  force.     The  extinguishment  of  the  debt  releases  the  securities. 

(II)  Stratigraphy 

§  36.  The  Dharmasutric  Period.  A.  Capacity ,  active.  In 
studying  stratigraphically  this  first  elemental  complexus  of 
norms,  in  their  bearing  on  caste,  we  note  that  the  first  five  {ante, 
§  33)  imply  the  existence  of  a  hierarchic  stratification  of  social 
classes,  and  may  therefore  be  assigned  to  the  feudal  type  (ante, 
§  3).  The  sixth  rule,  however,  permitting  the  gratuitous  loan  to 
all  castes,  is  independent  of  such  stratification,  and  therefore 
belongs  to  the  gentilic  type  (ante,  §  3).  Now  the  most  funda- 
mental feature  of  the  gentilic  type,  especially  where  the  higher 
forms  of  organization  (tribe,  tribal  union)  are  weak,  is  that  the 
domestic  groups  (single  family,  communal  household,  gentes) 
are  the  only  legal  persons.  From  this  principle  follow  important 
consequences,  viz.  these  groups  are  represented  by  their  chiefs; 
the  individual  members  of  the  group  have  no  legal  capacity ;  and 
the  relations  between  them  and  outsiders  are  only  relations  be- 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  139 

tween  the  group  and  the  outsiders.  An  observation  of  the  various 
rules  {ante,  §  33)  for  active  capacity  shows  that  all  of  them  have 
a  gentilic  significance;  for  the  domestic  group  alone  has  rights. 
The  dominant  type  (ante,  §§  4-6),  therefore,  indicated  for  this 
particular  complexus  of  norms,  is  the  gentilic  type.  Nevertheless, 
as  numerous  and  important  norms  of  the  feudal  type  are  also 
found,  the  coefficient  of  concomitance  {ante,  §  4,  par.  a)  for  that 
type  must  be  given  a  maximum  value  (see  post,  Table  I). 

B.  Capacity,  passive.  Here  the  norms  are  inherently  gentilic. 
Those  which  recognize  the  capacity  of  all  castes  as  obligors  negate 
a  social  stratification,  i.e.  are  non-feudal.  Those  which  recog- 
nize the  liability  of  domestic  groups  and  their  chiefs,  and  deny 
it  for  students,  ascetics,  hermits,  women,  and  minors,  are  similarly 
gentilic.     The  gentilic  type  is  therefore  the  only  one  represented. 

C.  Formation  of  the  Contract.  Here  the  data  are  inadequate 
to  determine  the  type  for  many  of  the  norms ;  e.g.  the  unilateral 
nature  of  the  contract,  and  the  things  that  may  be  the  subject 
of  loans.  That  the  loan  is  a  real  contract  points  to  gentilism. 
The  sense  of  public  order  restraining  liberty  of  contract  implies 
the  existence  of  a  State,  which  is  an  essentially  feudal  concep- 
tion. But  to  assign,  for  this  complexus  of  norms,  a  dominant 
type  and  a  concurrent  type  {ante,  §  4)  is  not  feasible. 

D.  Modalities.  Here  we  note  that  the  norms  as  to  rates  and 
kinds  of  interest  and  as  to  terms  of  payment  imply  a  remarkable 
development  of  the  law  of  obligations.  This  is  a  trait  of  feudalism 
of  the  highest  type,  viz.  the  individualist  type.  But  the  practice 
of  loans  of  very  long  periods  is  found  ordinarily  among  gentilic 
peoples,  and  is  inherent  in  that  type.  The  norm  requiring  that 
all  loans  be  secured  is  gentilic ;  for  it  is  found  among  all  societies 
practicing  the  loan,  and  unsecured  loans  presuppose  a  relative 
development  of  State  power,  i.e.  are  feudal.  The  rules  for  pledge 
and  suretyship  are  gentilic;  for  they  show  marked  weakness  of 
State  power  to  force  parties  to  perform  their  obligations,  and  also 
because  they  indicate  a  joint  liability  in  the  domestic  groups 
(pledge  and  sureties  being  usually  furnished  by  the  relatives). 
On  the  other  hand,  the  distinction  between  the  profit-bearing  and 
the  non-profit-bearing  pledge  is  feudal,  implying  a  development 
of  the  law  of  obligations ;  so  also  are  the  rules  for  prescription  and 
for  the  creditor's  liability  for  impairment  of  the  thing  pledged. 

Thus,  for  the  complexus  in  question,  the  dominant  type  is  gen- 
tilic ;  the  coefficient  of  concomitance  {ante,  §  4,  par.  a)  for  the 
feudal  type  has  a  medium  value. 


140  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

E.  Extinction.  Here  the  rules  are  purely  gentilic;  for  the 
modes  of  extinction  are  extra-judicial,  the  State  taking  no  part. 

To  sum  up  (see  Table  I,  post)  :  Throughout  the  foregoing  com- 
plexus,  except  the  third,  the  gentilic  type  is  dominant.  The 
feudal  type  appears  only  in  the  first  and  the  fourth,  its  coefficient 
of  concomitance  in  the  former  being  maximum.  For  the  entire  in- 
stitution —  the  Loan  —  comprising  the  five  complexus,  the  coeffi- 
cient of  concomitance  for  the  feudal  type  should  be  given  a  medium 
value ;  for  it  cannot  be  given  a  minimum  value,  owing  to  its 
important  position  in  the  first  and  the  fourth  complexus;  nor  a 
maximum  value,  owing  to  its  entire  absence  in  two  complexus, 
and  its  medium  value  in  another. 

§  37.  The  Manavic  Period.  A.  Capacity,  active.  Here  the  six 
rules  (ante,  §  34)  relating  to  castes  continue  to  survive  from  the 
Dharmasutric  period,  with  the  addition  of  the  one  about  slaves' 
incapacity.  The  rules  on  the  other  subjects^  are  also  the  same, 
except  that  the  woman's  capacity  has  begun  to  be  recognized. 
Hence  the  gentilic  type  remains  the  dominant  one,  and  the  co- 
efficient of  concomitance  for  the  feudal  type  is  maximum. 

B.  Capacity,  passive.  Here  the  rules  continue  to  be  the  same 
{ante,  §  34),  except  two,  viz.  the  recognition  of  the  woman's  capac- 
ity, and  the  disappearance  of  the  slave's  capacity.  The  formation 
of  a  special  lowest  caste  for  slaves  implies  an  intensification  of 
the  (feudal)  process  of  stratification  of  classes ;  and  the  woman's 
capacity  indicates  the  weakening  of  the  domestic  group's  ex- 
clusive capacity.  Hence,  the  gentilic  type  remains  dominant; 
while  the  coefficient  of  concomitance  for  the  feudal  type  may  be 
placed  at  medium. 

C.  Formation  of  the  Contract.  Here  the  rules  (ante,  §  34)  for 
the  real  nature  of  the  contract  are  gentilic;  but  the  otherwise 
remarkable  development  of  the  law  of  obligations  is  feudal.  Hence 
the  dominant  type  in  the  complexus  is  feudal,  and  the  coefficient 
of  concomitance  for  the  gentilic  type  is  minimum. 

D.  Modalities.  Here  the  rule  as  to  long  terms  of  loan  is  gen- 
tilic ;  but  the  requirement  of  fixing  that  term  in  the  contract 
itself,  and  the  various  other  rules  (interest,  etc.),  show  a  notable 
development  of  a  system  of  obligations,  i.e.  are  feudal  in  import. 
The  rules  for  non-secured  loans  presuppose  a  State,  and  are  there- 
fore feudal ;  while  the  rules  for  secured  loans,  and  especially  the 
rule  that  the  rate  of  interest  is  independent  of  the  debtor's  caste, 
are  gentilic.  The  pledge,  or  real  security,  is  gentilic;  but  the 
several  distinctions  and  rules  {ante,  §  34)  connected  with  it  imply 


Chap.  II.J  THE    SCIENTIFIC   METHOD   OF   GENERALIZING  141 

a  notable  development  of  obligations,  and  thus  are  feudal.  The 
personal  surety  is  gentilic ;  but  the  judicial  alongside  of  the  extra- 
judicial form  of  suretyship  indicates  the  formation  of  a  State, 
as  yet  weak.  The  dominant  type  may  therefore  be  figured  as 
feudal,  and  the  coefficient  of  concomitance  for  the  gentilic  type 
may  be  given  medium  value. 

E.  Extinction.  The  use  of  judicial  modes  indicates  the  ex- 
istence of  the  State,  but  its  weakness  is  seen  in  the  wide  use  of 
extra-judicial  methods.  The  debtor's  slavery  is  gentilic,  but  its 
limitation  as  to  caste  is  feudal.  Novation  is  feudal,  as  indicating 
a  notable  development  of  obligations.  On  the  whole,  the  domi- 
nant type  is  gentilic ;  the  coefficient  of  concomitance  is  of  medium 
value. 

To  sum  up  (see  Table  I,  post),  the  gentilic  type  is  dominant  in 
complexus  A,  B,  E,  and  concurrent  in  C,  D;  its  coefficient  of 
concomitance  in  the  latter  two  being  minimum  and  medium 
respectively.  The  feudal  type  is  dominant  in  complexus  C,  Z), 
and  concurrent  in  A,  B,  E;  its  coefficient  of  concomitance  being 
maximum  in  A,  and  medium  in  B  and  E. 

The  dominance  of  gentilism  in  three  of  the  five  complexus, 
the  importance  of  those  three  complexus,  and  the  presence  of  the 
gentilic  type  in  the  remaining  two  complexus,  justify  us  in  giving 
the  gentilic  type  the  dominant  place  in  the  whole  institution. 
The  feudal  type  is  only  concurrent;  but  its  dominance  in  three 
of  the  five  complexus,  and  its  strong  representation  in  the  remain- 
ing two,  obliges  us  to  give  maximum  value  to  that  coefficient. 

Hence,  in  the  Manavic  period,  for  the  institution  of  Loan,  the 
gentilic  type  is  dominant;  the  feudal  type  is  concurrent,  with  a 
maximum  coefficient. 

§  38.  The  Yajnavalkyan  and  the  Naradian  Periods.  A,  B. 
Capacity,  active  and  passive.  That  the  elemental  complexus  for 
these  two  subjects  continued  the  same,  morphologically,  in  the 
two  following  periods,  as  in  the  Manavic  period,  has  been  noted 
{ante,  §  35).  The  stratigraphic  conclusions  of  the  Manavic  period 
may  therefore  be  re-affirmed;  i.e.  the  dominant  type  continues 
to  be  the  gentilic,  and  the  coefficient  of  concomitance  for  the 
concurrent  feudal  type  is  maximum  for  active  capacity  and 
medium  for  passive  capacity. 

C.  Formation  of  Contract.  Here  the  same  persistence  of  ele- 
ments was  noted  (ante,  §  35)  for  the  two  later  periods ;  i.e.  the 
dominant  type  is  the  feudal,  and  the  coefficient  of  concomitance 
for  the  gentilic  type  is  of  minimum  value. 


142  CRITERIA   OF  LEGAL  EVOLUTION  [Part  I. 

D.  Modalities.  Referring  to  our  morphological  analysis  {ante, 
§  35)  of  this  complexus  for  these  periods,  we  find  that,  in  the  first 
group  of  norms  common  to  both  periods,  i.e.  rules  for  interest, 
the  feudal  type  dominates,  since  a  notable  development  of  a  sys- 
tem of  obligations  is  revealed.  Only  two  of  the  norms  are  posi- 
tively gentilic,  viz.  the  rule  making  the  rate  of  interest  for  secured 
loans  independent  of  the  debtor's  caste  (thus  implying  a  lack  of 
hierarchic  stratification  of  social  classes),  and  the  rule  permitting 
a  "  real  offer  "  (for  this  implies  a  weak  development  of  State 
force).  Of  the  rules  peculiar  to  the  Naradian  period,  all  are 
essentially  feudal,  in  implying  an  advanced  system  of  obligations. 
In  the  second  group,  the  norms  for  pledge,  the  profit-bearing 
pledge  is  gentilic,  being  widespread  among  gentilic  societies.  So, 
too,  the  imprescriptibility  of  the  pledge,  and  the  duty  to  restore  it 
on  payment  of  the  debt,  are  due  to  the  gentilic  principle  of  the 
perpetuity  of  domestic  groups,  which  in  gentilic  societies  are  the 
only  persons  having  property  rights.  All  the  other  norms, 
whether  common  to  both  periods  or  special  to  one  or  the  other 
period,  indicate  a  notable  development  of  a  system  of  obligations, 
hence  they  must  be  classed  as  feudal.  Accordingly  in  both 
periods,  the  feudal  type  is  plainly  dominant  and  the  gentilic  type 
is  only  concurrent.  But  in  the  Naradian  period  the  feudal  norms 
are  more  extensive  and  more  detailed  than  in  the  Yajnavalkyan 
period;  hence  the  feudal  type  is  relatively  more  important  in 
the  one  than  in  the  other  period.  In  the  third  group  of  norms, 
those  concerning  suretyship,  the  practice  of  personal  suretyship, 
implying  as  it  does  a  weakness  of  State  power,  is  gentilic;  but 
the  norms  of  suretyship  in  these  two  periods,  and  especially  in  the 
Naradian,  show  a  notable  tendency  to  a  dissolution  of  the  prac- 
tice, implying  an  increase  of  certainty  in  legal  relations  and  an 
intensification  of  State  power ;  hence  they  are  feudal. 

For  this  complexus  as  a  whole,  therefore,  in  these  two  periods, 
the  dominant  type  is  feudal;  the  coefficient  of  concomitance  for 
the  gentilic  type  is  at  minimum  value;  but  the  latter  is  a  little 
higher  in  the  Yajnavalkyan  than  in  the  following  period,  the 
contrary  being  true  of  the  feudal  type. 

E.  Extinction.  Here,  in  the  Yajnavalkyan  period,  the  only 
norms  of  gentilic  type  are  those  {ante,  §  35),  which  permit  extra- 
judicial measures  (implying  the  absence  or  weakness  of  State 
power),  and  those  which  sanction  the  irregular  enslavement  of 
the  debtor  (a  practice  widespread  in  gentilic  societies).  All  the 
other  rules  imply  a  notable  development  of  State  power  and  of 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  143 

a  system  of  obligations ;  hence  must  be  regarded  as  feudal.  The 
number  and  importance  of  feudal  rules  require  us  to  place  that 
type  as  dominant.  The  coefficient  of  concomitance  for  the  gen- 
tilic  type  can  hardly  be  regarded  as  minimum,  its  norms  being 
important ;  nor  yet  as  medium,  the  rules  being  few  in  number ; 
it  stands  between  minimum  and  medium.  Passing  to  the  Nara- 
dian  period,  the  only  gentilic  elements  are  the  surviving  ones 
from  the  Yajnavalkyan  period ;  all  the  others  implying  a  con- 
solidation of  the  State  and  a  notable  development  of  a  system  of 
obligations,  and  therefore  being  feudal  in  their  traits.  The 
dominant  type  is  thus  feudal ;  the  coefficient  of  concomitance  for 
the  gentilic  type  is  minimum,  for  the  number  and  importance  of 
such  rules  are  relatively  smaller.    • 

Summary  for  these  Periods.  Surveying  the  two  epochs,  there- 
fore, for  the  entire  institution  of  Loan,  we  find  that  the  feudal 
type  is  dominant  in  the  three  complexus,  C,  Z),  E;  and  that  it 
is  concurrent  in  complexus  A,  B,  with  a  maximum  coefficient  of 
concomitance.  The  gentilic  type  is  dominant  in  the  two  com- 
plexus A,  B ;  and  in  the  other  three  complexus  C,  Z),  E,  its 
coefficient  of  concomitance  is  regularly  minimum  in  the  Nara- 
dian  period,  while  in  the  Yajnavalkyan  period  it  is  minimum  for 
complexus  C  (formation  of  the  contract)  but  is  between  minimum 
and  medium  for  D  and  E} 

In  short,  during  the  Yajnavalkyan  period,  the  total  structure 
of  the  institution  of  Loan  shows  the  feudal  type  dominant,  and 
the  gentilic  type  concurrent  w^ith  its  coefficient  of  concomitance 
between  minimum  and  medium.  During  the  Naradian  period, 
the  dominance  of  the  feudal  type  continues,  but  the  coefficient 
of  concomitance  for  the  gentilic  type  descends  to  minimum. 

(Ill)    Genealogy 

The  problem  of  genealogy  for  the  Loan  in  ancient  India  is 
to  discover  its  origin  and  the  principle  of  its  morphologic  and 
stratigraphic  variations. 

§  39.  Principle  of  Stratigraphic  Variation  for  the  Dharmasu- 
tric  and  Manavic  Periods.  The  method  of  stratigraphic  varia- 
tions {antey  §  11)  applied  to  this  problem  requires  the  morphology 

^  [The  author's  text  here  reads:  "Dans  les  autres  complexus  il  a  un 
coefficient  constamment  minirae,  h  I'epoque  naradienne;  relativement 
a  la  periode  yajnavalkyenne  le  coefficient  est  minime  dans  le  complexus 
de  la  formation  du  pret,  [et  dans  les  deux  derniers  complexus]  il  a  une 
valeur  comprise  entre  la  valeur  moyenne  et  la  valeur  minime."  The 
words  placed  in  brackets  are  not  in  the  text,  but  must  be  inserted  in  order 
to  make  the  statement  tally  with 'the  prior  analysis.  — ^  Ed.] 


144 


CRITERIA   OF   LEGAL  EVOLUTION 


[Part  I. 


and  stratigraphy  of  at  least  two  successive  periods  to  be  at  our 
disposal.  This  we  have  secured  in  the  foregoing  sections  of  the 
present  chapter.  Table  I  shows  the  results  in  tabular  form  for 
the  two  earliest  historic  periods.  From  the  data  of  this  Table 
the  following  principle  of  stratigraphic  variation  may  be  deduced : 

Table   I.     The   Loan  :    Stratigraphic  Analysis   for   Two    Periods 


Elemental  Complexus 

Type 

Dharmasutric 
Period 

Manavic 
Period 

A.  Capacity,  active      .... 

B.  Capacity,  passive    .... 

C.  Formation  of  Contract 

D.  Modalities 

E.  Extinction 

Dominant 

Concurrent 

Dominant 

Concurrent 

Dominant 

Concurrent 

Dominant 

Concurrent 

Dominant 

Concurrent 

Gentilic 
Feudal  3 
Gentilic 
Feudal  0 
Uncertain 
Uncertain 
Gentilic 
Feudal  2 
Gentilic 
Feudal  0 

Gentilic 
Feudal  3 
Gentilic 
Feudal  2 
Feudal 
Gentilic 
Feudal 
Gentilic  2 
Gentilic 
Feudal  2 

In  passing  from  the  Dharmasutric  to  the  Manavic  period,  the 
gentilic  type  remains  dominant;  but  the  coefficient  of  concomi- 
tance of  the  feudal  type  rises  from  medium  to  maximum  value. 
This  increase  of  intensity  in  the  feudal  type  affects  all  the  ele- 
mental complexus  except  Ay  where  no  change  occurs. 

§  40.  Reconstruction  of  the  Pre- Dharmasutric  Period.  Now 
in  proceeding  to  the  reconstruction  of  the  still  earlier  period 
{i.e,  before  the  6th  century  B.C.,  and  covering  probably  several 
centuries),  we  note  that  as  the  Dharmasutric  and  the  Manavic 
periods  covered  about  eight  centuries  (6th  cent.  B.C.  to  2d  cent. 
A.D.),  and  the  gentilic  type  remained  dominant  throughout,  it 
must  have  existed  in  the  pre-Dharmasutric  period;  and  always 
the  most  stable  elements  in  any  institution  are  those  of  earliest 
origin.  Furthermore,  since  the  feudal  type  increases  in  intensity 
during  those  periods,  and  since  we  have  no  reason  to  doubt  the 
progressiveness  of  this  intensification,  we  may  infer  that  in  the 
more  remote  period  (pre-Dharmasutric),  the  coefficient  of  concomi- 
tance for  the  feudal  type  was  of  minimum  value. 

Proceeding  now  to  the  specific  complexus,  we  note : 

A.  That  only  in  respect  to  active  capacity  does  the  feudal 
type  keep  the  same  intensity  in  the  two  periods;  in  the  other 
types  it  shows  a  variation  more  or  less  decided ;  whence  we  may 


Chap.  II.J         THE  SCIENTIFIC  METHOD  OF  GENERALIZING  145 

infer  that  in  the  pre-Dharraasutric  period  also  its  intensity  must 
have  been  here  more  stable  than  in  the  other  eomplexus. 

B.  That  for  passive  capacity,  the  only  type  represented  in  the 
Dharmasutric  period  is  the  gentilic,  while  in  the  Manavic  period 
the  feudal  type  is  concurrent  with  a  notable  coefficient  of  concomi- 
tance ;  whence  we  must  infer  that  in  the  pre-Dharmasutric  period 
the  feudal  type  is  to  be  given  no  place  at  all. 

C.  That  for  the  formation  of  the  contract,  the  feudal  type 
is  dominant  in  the  Manavic  period,  while  the  gentilic  type  is  con- 
current with  a  minimum  coefficient  of  concomitance ;  and  that  in 
the  Dharmasutric  period  both  types  are  uncertain;  but  that 
nevertheless  the  relative  increase  and  decrease  of  the  feudal  and 
the  gentilic  types  justify  us  in  attributing  to  the  pre-Dharmasutric 
period  a  dominance  for  the  gentilic  type  and  a  low  coefficient 
of  concomitance  for  the  feudal  type. 

D.  That,  for  the  modalities  of  loan,  since  in  the  two  periods 
Dharmasutric  and  Manavic  the  dominance  of  the  gentilic  type 
yields  to  that  of  the  feudal  type,  the  pre-Dharmasutric  period 
must  be  credited  with  a  dominant  gentilic  type  and  a  minimum 
coefficient  of  concomitance  for  the  feudal  type. 

E.  That,  for  extinction  of  loan,  since  the  feudal  element  is 
lacking  entirely  in  the  Dharmasutric  period,  and  acquires  in  the 
Manavic  period  a  medium  coefficient  of  concomitance,  it  must 
be  deemed  to  have  been  lacking  in  the  pre-Dharmasutric  period. 

With  the  aid  then  of  these  stratigraphic  analyses,  and  of  the 
stratigraphic  principle  above  deduced  forsthe  Dharmasutric  and 
Manavic  periods,  let  us  proceed  to  reconstruct  more  in  detail  the 
specific  norms  for  the  pre-Dharmasutric  period ;  for  those  norms 
must  be  the  ones  existing  in  the  Dharmasutric  period,  modified 
on  the  above  lines. 

A.  Active  Capacity.  We  cannot  suppose  that  active  capacity 
was  true  of  all  castes  in  the  pre-Dharmasutric  period ;  for  the 
feudal  element  keeps  a  strong  importance  for  this  eomplexus  in 
both  the  Dharmasutric  and  the  Manavic  periods.  On  the  other 
hand,  we  cannot  suppose  that  the  norms  of  the  Dharmasutric 
period  already  existed  in  their  entirety  in  the  pre-Dharmasutric 
l)eriod  ;  for  these  norms  show  decided  changes  in  passing  from  the 
Dharmasutric  to  the  Manavic  period.  Besides,  we  know  that 
in  all  societies  the  weakening  of  the  feudal  element  is  accompanied 
by  a  weakening  of  royal  power  and  of  the  separation  of  castes,  and 
by  a  weakening  in  the  localization  of  social  function  in  the  several 
castes.     Hence  we  may  infer,  for  the  pre-Dharmasutric  period, 


146  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

a  persistence  of  the  Dharmasutric  norm  giving  active  capacity 
to  the  vaisya  caste,  and  giving  it  to  brahmans  and  kshatriyas 
in  only  two  exceptional  cases;  though  the  number  of  these  ex- 
ceptional cases  would  have  been  more  extensive.  Again,  the 
Dharmasutric  rules  giving  the  king  a  right  to  force  vaisyas  to 
exercise  the  loan,  and  the  power  to  forbid  it  to  the  other  castes, 
could  not  have  existed  in  the  prior  period,  or  at  least  only  to  a 
limited  extent.  The  Dharmasutric  norm  forbidding  the  sudras 
to  exercise  the  loan  for  interest  must  have  been  more  or  less  re- 
stricted in  the  pre-Dharmasutric  period.  And  the  Dharmasutric 
loan  permitting  all  castes  to  loan  without  interest,  being  purely 
gentilic  in  feature,  must  have  existed  in  the  pre-Dharmasutric 
period.  The  Dharmasutric  norms  as  to  active  capacity  of  kinds 
of  persons,  women,  minors,  and  domestic  groups,  are  essentially 
gentilic ;  hence  they  must  have  pre-existed  in  the  pre-Dharmasu- 
tric period.  And  the  active  capacity  of  family  groups  and  the 
representative  capacity  of  their  chiefs  must  have  been  more 
marked  in  the  pre-Dharmasutric  period,  being  dominantly  gentilic 
in  nature. 

B.  Passive  Capacity.  The  Dharmasutric  norms  are  here 
purely  gentilic,  hence  their  pre-existence  in  the  pre-Dharmasutric 
period,  with  an  intensification  of  passive  capacity  for  family 
groups. 

C.  Formation  of  Contract.  Since  the  norm-types  are  uncertain 
here  for  the  Dharmasutric  period,  it  is  difficult  to  reconstruct 
the  prior  period.  But  the  gentilic  norms  of  the  Dharmasutric 
period  must  have  figured  more  intensely  in  the  pre-Dharmasutric 
period,  and  the  feudal  element  (affecting  liberty  of  contract,  etc.) 
must  have  been  weaker. 

D.  Modalities.  We  have  seen  that  in  the  Dharmasutric  period 
the  gentilic  type  was  dominant,  with  a  minimum  coefficient  cf 
concomitance  for  the  feudal  type;  so  that  the  gentilic  norms  of 
thB  Dharmasutric  period  must  have  pre-existed  in  the  pre-Diiar- 
masutric  period.  This  signifies :  long  terms  for  loans,  security 
for  all  loans,  furnishing  of  security  by  the  debtor's  domestic  group, 
absence  of  relation  between  rate  of  interest  and  length  of  enjoy- 
ment of  pledged  property,  antichresis,  absence  of  judicial  and 
extra-judicial  suretyship,  solidary  real  suretyship,  no  prescrip- 
tive title  to  pledge.  The  feudal  Dharmasutric  rules  could  only 
have  had  limited  recognition  in  the  prior  period,  e.g.  variety  in  the 
kinds  of  interest ;  for  freedom  to  settle  rates  of  interest  belongs  to 
autonomy  of  domestic  groups,  hence  is  gentilic.     The  same  is 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING 


147 


true  of  liberty  to  fix  terms  of  payment.  The  pledge  must  have 
been  profit-bearing,  for  such  it  is  in  gentilic  societies;  and  the 
Dharmasutric  rule  forbidding  interest  on  loans  secured  by  a 
profit-bearing  pledge  must  also  have  pre-existed.  The  norm  for 
creditor's  liability  for  injury  to  the  pledge  must  have  pre-existed 
even  more  intensely ;  for  the  principle  of  liability  irrespective  of 
distinction  between  intent,  negligence,  and  accident,  is  a  feature 
of  gentilic  societies. 

E.  Extinction.  Here  the  Dharmasutric  norms  are  purely  of 
gentilic  type ;  hence  they  must  have  pre-existed  in  the  pre-Dhar- 
masutric  period. 

Summing  up,  then,  Table  II  shows  the  results  of  our  strati- 
graphic  reconstruction  of  the  Loan  for  the  pre-Dharmasutric 
period,  in  comparison  with  that  of  the  Dharmasutric  period : 


Table  II.     The  Loan:    Stratigraphic  Reproduction  of  the    Pre- 
Dharmasutric  Period 


Elemental  Complexus 

Type 

Pre-Dhar- 
masutric 
Period 

Dharmasutric 
Period 

A.   Capacity,  active     .... 

Dominant 

Gentilic 

Gentilic 

Concurrent 

Feudal  i 

Feudal  3 

B.   Capacity,  passive    .... 

Dominant 

Gentilic 

Gentilic 

Concurrent 

Feudal  o 

Feudal  0 

C.   Formation  of  Contract 

Dominant 

Gentilic 

Uncertain 

Concurrent 

Feudal  i 

Uncertain 

D.   Modalities 

Dominant 

Gentilic 

Gentilic 

Concurrent 

Feudal  i 

Feudal  2 

E.    Extinction 

Dominant 

Gentilic 

Gentilic 

Concurrent 

Feudal  o 

Feudal  0 

§41.  Reconstruction  of  the  Primitive  Period.  From  Table  II 
it  appears  clearly  that  the  pre-Dharmasutric  period  cannot  be 
the  period  of  formation  of  the  Loan.  A  comparison  of  Tables  I 
and  II  shows  that  in  the  three  epochs  there  represented  —  pre- 
Dharmasutric,  Dharmasutric,  and  Manavic — the  gentilic  type 
persists  as  dominant,  while  the  concurrent  feudal  type  shows 
notable  variations  in  intensity.  These  variations,  however, 
proceed  by  regular  and  uniform  gradations ;   the  coefficient  rising 


148  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

from  a  minimum  to  a  maximum  value  from  the  pre-Dharmasutric 
to  the  Manavic  period. 

It  follows  that  in  the  formative,  or  primitive,  period  of  the  Loan, 
the  feudal  element  must  have  been  totally  lacking.  Chronologically, 
the  date  and  extent  of  that  period  cannot  be  fixed ;  we  can  only 
say  that  it  was  immediately  prior  to  the  pre-Dharmasutric  period. 
It  must  have  been  prior  to  that  distant  epoch  in  which  India 
arrived  at  a  stage  marked  by  the  consolidation  of  the  caste  system. 
The  loan  being  of  great  social  importance  in  peoples  not  far  ad- 
vanced, that  consolidation  of  the  hierarchic  stratification  of  social 
classes  necessarily  would  introduce  feudal  elements  into  the  loan ; 
therefore,  since  no  feudal  element  is  found  in  the  primitive  period, 
it  follows  that  the  period  was  prior  to  that  in  which  the  caste  system 
was  consolidated.  And  as  the  last  two  periods  covered  eight 
centuries,  the  primitive  period  must  have  covered  several  centuries. 

Since  in  the  primitive  period  no  feudal  element  occurred,  we  may 
reconstruct  the  loan  at  that  period  by  eliminating  the  feudal 
elements  found  in  the  pre-Dharmasutric  period  and  intensifying 
the  gentilic  elements  there  found. 

A.  Active  Capacity.  All  distinction  of  caste  must  here  have 
been  lacking.  The  only  persons  capable  of  making  loans,  in  a  pure 
gentjlic  society,  were  the  family  groups;  when  individuals  made 
loans,  they  were  presumed  to  be  in  the  interest  of  the  group. 
Students,  hermits,  ascetics,  women,  and  minors,  entirely  lacked 
capacity.     Heads  of  families  represented  their  groups. 

B.  Passive  Capacity.  The  same  features  marked  the  rules  of 
passive  capacity. 

C.  Formation  of  Contract.  Here  there  could  have  been  no 
clear  and  definite  rules  as  to  consent  and  the  grounds  for  presumed 
lack  of  consent,  such  as  develop  in  feudal  societies ;  for  such  rules 
are  alien  to  gentilic  societies ;  so  also  the  notion  of  public  control 
and  limitation  of  contractual  liberty.  In  gentilic  societies,  the 
contracts  are  real,  and  are  made  with  special  ceremonial  forms; 
arid  such  must  have  been  the  features  of  the  loan. 

D.  Modalities.  Here  we  must  infer  the  absence  of  all  re- 
strictions as  to  rate  of  interest  and  modalities  of  the  contract. 

E.  Extinction.  All  the  rules  of  purely  gentilic  nature  in  the 
pre-Dharmasutric  period  must  have  existed  in  this  prior  period. 

In  thus  reconstructing  the  lines  of  the  loan  structure  in  the 
primitive  period,  we  are  not  to  assume  that  these  rules  were 
found  in  their  entirety  throughout  the  period.  Their  formation 
was  slow  and  gradual;    and  in  some  stages  doubtless  several  of 


Chap.  II.]  THE   SCIENTIFIC   METHOD   OF  GENERALIZING  149 

them  were  entirely  lacking.  Moreover,  the  reconstruction  is 
incomplete,  in  that  it  leaA^es  out  of  account  those  rules,  frequently 
developing,  which  subsequently  disappear  without  exercising  an 
appreciable  influence  on  the  later  development  of  the  institution ; 
for  such  rules  would  not  have  survived  into  the  later  periods  which 
furnish  our  data  for  reconstruction. 

§  42.  Summary  of  Morphologic  Variations.  A  comparison  of 
the  morphologic  results  during  these  six  periods  enables  us  to  make 
several  important  generalizations. 

(1)  The  structurg_i2f_JJie--loa»'&hews~tw  a  gradual  complexity. 
In  the  primitive  period,  the  number  of  rules  is  scanty;  in  the 
Naradian  period,  it  is  notably  large ;  and  the  number  and  im- 
portance of  the  rules  increases  from  period  to  period. 

(2)  This  gradual  complexity  is  not  uniform  in  all  the  epochs. 
From  the  primitive  to  the  pre-Dharmasutric  periods,  the  transi- 
tion shows  variations  of  great  importance.  From  the  pre-Dhar- 
masutric to  the  Dharmasutric,  and  thence  to  the  Manavic,  the 
transition  shows,  on  the  other  hand,  variations  which  though 
notable  have  not  an  intensity  equal  to  that  of  the  prior  stage. 
From  the  Manavic  to  the  Yajnavalkyan  period,  the  variations 
are  not  notable.  But  from  the  Yajnavalkyan  to  the  Naradian 
the  variations  are  important  both  in  number  and  in  kind. 

(3)  Since  in  early  stages  the  development  of  an  institution  is 
slow,  the  importance  of  the  variations  from  the  primitive  to  the 
pre-Dharmasutric  period  presupposes  a  considerable  extent  for 
the  latter  period,  as  well  as  the  formation  of  a  considerable  part 
of  the  rules  of  that  period  in  the  less  remote  parts  of  it. 

(4)  The  gradual  increase  of  complexity  of  the  structure  is  not 
uniform  in  the  several  complexus.  (A)  The  complexus  of  active 
capacity  is  largely  stable ;  the  greatest  variations  occur  during  the 
transition  from  the  primitive  to  the  pre-Dharmasutric  period, 
but  afterwards  the  complexus  remains  almost  constant.  (B)  The 
complexus  of  passive  capacity  remains  almost  constant  during 
the  primitive,  pre-Dharmasutric,  and  Dharmasutric  periods;  in 
the  Manavic  period  it  shows  a  notable  complication ;  in  the  later 
periods  it  remains  constant.  (C)  The  complexus  of  formation 
of  loan  has  a  high  degree  of  stability;  the  variations  of  the  first 
three  periods  are  notable,  but  the  last  three  periods  show  relative 
constancy.  (D)  The  complexus  of  modalities  is  the  most  variable 
of  all.  Its  scope  is  very  limited  in  the  primitive  period,  but  in- 
creases gradually,  particularly  in  the  Manavic  and  following 
periods.     This  complexus  is  the  one  containing  of  course  the 


150  CRITERIA    OF   LEGAL   EVOLUTION  [Part  I. 

greatest  number  of  norms.  (E)  The  eomplexus  of  extinction 
shows  great  stability  in  the  first  three  periods ;  its  variation  from 
the  Dharmasutric  to  the  Manavic  period  is  notable ;  in  the  later 
periods  the  variations  are  notable  but  scantier. 

The  principle  governing  the  morphological  variations  of  the 
loan  in  the  periods  under  consideration  may  thus  be  generalized : 

Loan,  in  the  steps  of  its  passage  from  the  primitive  to  the  Nara- 
dian  period,  exhibits  a  gradual  and  continuous  increase  of  com- 
plexity of  structure;  but  this  increase  of  complexity  is  not  uni- 
form throughout  the  several  periods  nor  throughout  the  several 
eomplexus  of  norms.  The  maximum  intensity  of  variations  of 
structure  is  found  in  the  transition  from  the  primitive  to  the 
Dharmasutric  periods  and  in  the  eomplexus  of  modalities.  The 
minimum  is  found  in  the  transition  from  the  Manavic  to  the 
Yajnavalkyan  period  and  in  the  eomplexus  of  active  capacity. 
Between  these  limits  the  variations  fluctuate,  both  as  to  periods 
and  as  to  eomplexus. 

§  43.  Summary  Law  of  Stratigraphic  Variations.  Table  III 
shows  the  stratigraphic  variations  of  Loan  in  the  periods  under 
consideration. 

As  heretofore  pointed  out,  two  successive  periods,  chrono- 
logically distinct,  in  the  history  of  an  institution,  are  genealog- 
ically distinct  only  when  their  stratigraphic  composition  is  dif- 
ferent. By  this  criterion,  the  six  periods  under  consideration  are 
all  genealogically  distinct. 

The  principle  governing  the  stratigraphic  variations  of  Loan 
in  ancient  India  may  thus,  by  the  aid  of  Table  III,  be  summa- 
rized : 

In  the  transitions  from  period  to  period,  the  total  structure 
exhibits  a  continual,  gradual,  and  relatively  uniform  increase  in 
intensity  of  the  feudal  type;  which  in  the  first  four  periods  is 
concurrent,  having  a  coefficient  rising  from  0  to  3,  and  in  the  last 
two  periods  becomes  dominant.  Correspondingly,  the  gentilic 
type  shows  a  decreasing  intensity,  while  remaining  dominant 
during  the  first  four  periods;  the  decrease  is  correlative  with 
the  gradual  increase  of  the  concomitant  feudal  type ;  and  in  the 
last  two  periods  the  dominance  passes  from  the  gentilic  to  the 
feudal  type. 

This  regularity  of  variations  for  the  total  structure  does  not 
obtain  for  all  the  specific  eomplexus.  (A)  In  the  eomplexus  of 
active  capacity,  the  gentilic  type  remains  dominant  in  all  periods, 
while  the  concurrent  feudal  type,  appearing  first    in  the  pre- 


Chap.  II.]  THE  SCIENTIFIC   METHOD   OF   GENERALIZING 


151 


Dharmasutric  period,  shows  a  notable  increase  of  intensity  in 
passing  to  the  Dharmasutric  period,  and  retains  a  constant  in- 
tensity in  the  remaining  periods.  (B)  In  the  complexus  of  pas- 
sive capacity,  the  gentiUc  type  remains  the  dominant  one  through- 
out ;  the  concurrent  feudal  type,  occurring  first  -in  the  Manavic 
period,  with  a  medium  coefficient,  preserves  the  same  intensity  in 
later  periods.  (C)  In  the  complexus  of  loan-formation,  the  feudal 
type  increases  progressively  in  intensity  (except  in  the  Dharmasu- 
tric period),  appearing  first  in  the  pre-Dharmasutric  period  with  a 

Table  III.     The  Loan:  Complete  Stratigraphic  Reconstruction 


Elemental 
Complexus 

Type 

Period 

1.  Prim- 
itive 

2.  Pre- 

dharma- 

sutric 

3.   Dhar- 
masutric 

4.   Ma- 
navic 

5.   Yajna- 
valkyan 

6.  Nara- 
dian 

A.  Capacity, 
active 

Dominant 

Gent. 

Gent. 

Gent. 

Gent. 

Gent. 

Gent. 

Concurrent 

Feud.  0 

Feud.  1 

Feud.  3 

Feud.  3 

Feud.  3 

Feud.  3 

B.  Capacity, 
passive 

Dominant 

Gent. 

Gent. 

Gent. 

Gent. 

Gent. 

Gent. 

Concurrent 

Feud.  0 

Feud.  0 

Feud.  0 

Feud.  2 

Feud.  2 

Feud.  2 

C.  Formation 
of  Con- 
tract 

Dominant 

Gent. 

Gent. 

Uncertain 

Feud. 

Feud. 

Feud. 

Concurrent 

Feud.  0 

Feud.  1 

Uncertain 

Gent.  1 

Gent.  1 

Gent.  1 

D.  Modalities 

Dominant 

Gent. 

Gent. 

Gent. 

Feud. 

Feud. 

Feud. 

Concurrent 

Feud.  0 

Feucf.  1 

Feud.  2 

Gent.  2 

Gent.  i_2 

Gent.  1 

E.  Extinction 

Dominant 

Gent. 

Gent. 

Gent. 

Gent. 

Feud. 

Feud. 

Concurrent 

Feud.  0 

Feud.  0 

Feud.  0 

Feud.  2 

Gent.  i_2 

Gent.  1 

Total      Struc- 

Dominant 

Gent. 

Gent. 

Gent. 

Gent. 

Feud. 

Feud. 

tution 

Concurrent 

Feud.  0 

Feud.  1 

Feud.  2 

Feud.  3 

Gent.  i_2 

Gent.  1 

minimum  intensity,  and  becoming  dominant  in  the  Manavic 
period,  while  the  concurrent  gentilic  type  has  constantly  a  mini- 
mum intensity.  (D)  In  the  complexus  of  modalities,  the  feudal 
type  shows  a  gradual  intensification,  appearing  for  the  first  time 
in  the  pre-Dharmasutric  period  as  a  concurrent  type  with  mini- 
mum coefficient,  and  from  the  Manavic  period  onwards  becoming 
dominant;  the  gentilic  type,  dominant  during  the  first  three 
periods,  decreases  gradually  in  intensity,  corresponding  to  the 
gradually  increasing  intensity  of  the  feudal  type,  and  from  the 
Manavic  period  onwards  it  is  the  concurrent  type,  with  a  de- 


152  CRITERIA   OF   LEGAL  EVOLUTION  [Part  I. 

creasing  coefficient  of  intensity.  (E)  In  the  complexus  of  ex- 
tinction, the  gentiUc  type,  dominant  throughout  the  first  four 
periods,  shows  notable  persistence;  the  feudal  type  is  lacking 
during  the  first  three  periods,  and  in  the  Manavic  period  it  is 
only  concurrent  with  a  medium  coefficient;  but  in  the  last  two 
periods  it  becomes  dominant,  while  the  coefficient  of  the  con- 
current gentilic  type  gradually  decreases. 

In  general,  throughout  the  several  complexus,  is  found  an  in- 
tensification of  the  feudal  element,  and  a  corresponding  weakening 
of  the  gentilic  element,  from  the  Manavic  period  onwards. 


Chapter  III 

CRITIQUE  OF  METHOD  IN  THE  STUDY  OF  THE  LAW'S 

EVOLUTION  1 

What  is  the  necessary  method  to  he  used  in  tracing  the  evolu- 
tion of  a  legal  idea?  Hitherto,  few  if  any  of  the  results  achieved 
in  the  evolution  of  law  have  been  reached  by  a  rigidly  scientific 
method.^    The  reasons  that  extenuate  and  account  for  this  are 

1  [By  John  H.  Wigmore,  co-editor  of  this  series.  Reprinted  from 
"Problems  of  the  Law's  Evolution",  being  a  portion  of  the  first  of  a  series 
of  three  lectures  delivered  at  the  University  of  Virginia  by  the  author  on 
the  Barbour-Page  Foundation,  and  originally  pubhshed  in  the  Virginia  Law 
Review,  IV,  247  (January  1917).] 

2  The  general  objective  of  a  science  of  universal  legal  history  has  in- 
deed been  perceived  to  require  something  more  than  the  collection  and 
collation  of  data  of  numerous  peoples ;  notably  this  has  been  insisted  on  by 
Post,  in  his  "  Ethnologische  Jurisprudenz "  and  other  works,  and  by  Del 
Vecchio  in  his  "Scienza  del  Diritto  universale  comparato"  (both  trans- 
lated, in  part,  in  Vol.  II  of  this  series).  But  no  appUcation  seems  to  have 
been  made  of  this  by  a  rigid  method  of  inductive  demonstration  in  tracing 
the  evolution  of  a  specific  idea  or  institution. 

In  the  recent  work  of  Pinelbs,  a  Pohsh  scholar  and  lecturer  at  Vienna, 
"Questions  de  Droit  Romain,  etudiees  d'apres  la  nouvelle  methode  his- 
torique  du  Droit  compare"  (translated  by  Herzen,  Paris,  1911),  some  pa- 
rade is  made  in  the  preface  of  the  author's  "New  Method",  which  shall 
remedy  the  "defects"  of  the  prior  methods  of  that  science;  but  the  ex- 
amples given  as  the  professed  demonstration  of  the  new  methods  are 
lacking  in  any  advance  over  the  method  of  such  eminent  laborers  as  Maine 
and  Post. 

In  CoglioWs  "Saggi  sopra  I'Evoluzione  del  Diritto  Privato"  (Turin, 
1885),  this  distinguished  Romanist  defines  legal  evolution  in  a  well-bal- 
anced and  truly  scientific  treatment,  but  then  proceeds  to  his  specific 
instances  of  the  process  of  evolution  with  this  singular  postulate,  fatal, 
of  course,  to  the  attainment  of  any  results  having  great  value:  "Since 
it  is  not  necessary  to  study  all  the  plants  of  a  certain  species  for  pur- 
poses of  botanical  science,  so  it  is  not  necessary  for  legal  evolution  to 
examine  the  laws  of  all  peoples;  to  pile  up  facts  and  to  repeat  the  ac- 
counts of  others  is  not  to  discover  principles ;  they  may  be  discovered  by 
the  study  of  a  single  system  of  law,  provided  it  is  like  the  Roman,  not 
merely  a  fragmentary  and  imperfect  one,  but  brilliant  in  the  complete- 
ness of  its  development;"  and  therefore  he  proceeds  to  demonstrate  the 
existence  of  a  number  of  supposed  principles  of  evolution  by  Roman 
examples  alone. 

In  Mazzarella's  "Les  Types  sociaux  et  le  Droit  "  (Paris,  1908;  a  com- 
pendium of  his  views  scattered  through  various  works)  is  found  the 
only  rigidly  scientific  system  hitherto  published.  Its  presentation  is 
marred  by  certain  favorite  doctrines  of  his ;  but  it  is  the  one  attempt  at 
a  genuinely  complete  method  of  generalization.     [See  Chapter  II,  supra.] 

153 


154  CRITERIA  OF   LEGAL   EVOLUTION  [Part  I. 

numerous.  The  usual  method  and  necessary  effort  has  been  to 
collect  the  materials  for  different  countries  and  periods;  for  the 
tracing  of  the  history  in  each  country  must  come  first.  This  has 
been  possible  hitherto  for  only  a  few  systems  of  law,  in  their 
entirety;  the  European  systems  since  the  Christian  era  have 
been  subjected  to  complex  forces  of  imitation  from  each  other, 
so  that  a  pure  system  for  any  long  period  is  rare.  But  the  idea  of 
evolution,  as  distinguished  from  history,  has  been  seldom  the 
objective  of  search.  The  method  has  been  merely  to  search  for 
common  features  in  different  legal  systems,  and,  after  selecting 
here  and  there  from  the  entire  mass  these  common  features,  to 
point  out  the  reappearance  of  common  institutions,  or,  in  Del 
Vecchio's  words,  ''that  certain  ideas  have  been  the  common  herit- 
age of  all  humanity  in  all  epochs."  But  this  method  proves 
only  that  similar  forms  have  existed  at  different  times  and  places. 
It  does  not  yrow  that  these  forms  have  had  any  inherent  or  neces- 
sary development  as  ideas  common  to  all,  or  that  there  is  a  necessary 
evolution  for  any  particular  idea  in  all  times  and  communities. 

Any  rigidly  scientific  results  must  be  based  on  at  least  the  fol- 
lowing elements :  Taking  a  single  idea  or  institution,  its  forms 
must  be  traced  (1)  in  two  or  more  successive  epochs  for  the  same 
communities ;  (2)  then  in  two  or  more  communities  in  successive 
epochs;  (3)  then  the  other  legal  institutions  in  the  same  com- 
munities and  epochs  must  be  mapped  out,  so  that  the  connection 
if  any  may  be  disclosed;  (4)  then  the  main  social  forces  in  the 
same  communities  and  epochs  must  also  be  mapped  out,  so  as 
further  to  detect  the  possible  causes  of  difference ;  (5)  the  whole 
must  be  conceived  of  as  a  simultaneous  movement  of  forces. 
Perhaps  such  a  rigid  method  is  as  yet  impracticable,  for  lack  of 
adequate  data,  but  at  least  it  is  an  ideal  to  be  looked  forward  to. 

Let  us  take  an  example  of  its  possibilities.  Take  two  legal 
ideas :  first,  that  of  the  form  of  expression  of  law ;  secondly,  that 
of  the  organ  for  declaring  law.  (A)  The  three  chief  forms  of 
the  expression  of  law  are  (a)  statute  or  legislatiori,  (b)  custom, 
(c)  judgmenty.  Sir  Henry  Maine  advanced  the  plausible  as- 
sertion that  the  historical  sequence  is  always  the  reverse  of  the 
above,  i.e.  is  this :  judgments,  customs  (first  oral,  then  written), 
legislation.  (B)  The  three  main  organs  for  declaring  the  law 
/  have  been :  (a)  Kings,  or  chieftains,  (b)  Aristocracies,  either 
\  ecclesiastical  or  political  or  military,  (c)  Democracies,  either  by 
an  expert  body  of  lawmen  or  lawyers,  or  by  a  popular  assembly, 
representative  or  otherwise.     Sir  Henry  Maine  advances  the  con- 


Chap.  III.] 


CRITIQUE   OF  METHOD 


155 


Illustration  of  the  Method  of  Studying   Data   of   Legal 
Evolution  ^ 


p 

i 

Epoch 

A.  Form  of  Law  : 

a  Case-Judgments 

b  Customs 
(bO  Oral 
(b2)  Written 

c   Legislation 

B.  Organ  of  Law  : 

a  King 

b  Aristocracy  or  Oligarchy 

(bO  ecclesiastic 

(b2)  poUtical 
c   Democracy 

(cO  lawyer-class 

(c2)  general  assembly 

B.C. 

1200 

a    case-judgments 

c^   lawyer-class 

OS 

B.C. 
B.C. 

900 
700 

bi  oral  customs 
b2  written  customs 

b2  political  oligarchy 

b^  ecclesiastical  oligarchy 

B.C. 

400 

c    legislation 

bi  ecclesiastical  oligarchy 

A.  D. 

300 

a    case- judgments 

ci  lawyer-class 

A.  D. 

500 

a    case- judgments 

c^  lawyer-class 

B.C. 

700 

a    case-judgments 

a    Kings 

<5 

B.C. 
B.C. 

500 
400 

b^  oral  customs 
b^  written  customs 

b^  ecclesiastical  oUgarchy 
b2  political  oligarchy 

B.C. 

200 

a    case- judgments 

c^  lawyer-class 

A.  D. 

200- 
600 

c    legislation 

a    Kings 

CO 
iz; 

A.  D. 

500 

a    case-judgments 

c^  lawyer-class 

> 
< 

A.  D. 

1100 

b^  oral  customs 
b2  written  customs 

c^  lawyer-class 

c^  general  assembly 

2; 

< 

A.  D. 

1200 

c    legislation 

b2  political  oligarchy 
a    Kings 

.  '-'^ 

A.  D. 

1100 

a    case- judgments 

a    Kings 

§2 

A.  D. 

1500 

a    case-judgments 

b2  aristocratic  lawyer-class 

<^ 

A.  D. 

1800 

c    legislation 

c^  democratic  general  assembly 

*  The  data  for  Hebrew  law  are  based  on  Kent  and  Sanders'  chap- 
ters on  "The  Growth  of  Israelitish  Law"  in  "Yale  University  Biblical 
and  Semitic  Studies"  (1901).  Those  for  Scandinavian  law  are  based  on 
Ebbe  Hertzberg's  chapter  on  Scandinavian  sources  in  Vol.  I  ("General 
Survey")  of  the  "Continental  Legal  History  Series"  (1913).  The  data 
for  Roman  law  are  based  on  the  manuals  of  Muirhead  and  others. 


156  .        CRITERIA   OF   LEGAL   EVOLUTION  [Part  I. 

elusion  that  in  the  Indo-European  communities,  the  order  of  de- 
velopment was  as  above :  Kings,  aristocracies,  democracies ;  the 
Orient,  in  the  second  stage  (aristocracy),  developing  by  an  ec- 
clesiastical oligarchy,  and  the  Occident  by  a  military  or  political 
one. 

(1),  (2).  Let  us  now  test  these  generalizations  by  tracing  these 
institutions  in  three  or  four  types  of  peoples  in  successive  epochs. 
In  tracing  the  first  institution,  the  form  of  expression  of  law, 
we  find  that  Sir  Henry  Maine's  sequence  does  indeed  appear  in 
Roman  development;  though  the  sequence  is  broken  between 
(b)  and  (c)  by  a  marked  reversion  to  (a),  or  case-judgments, 
during  the  late  republic  and  early  empire.  (Of  course,  it  must 
be  understood  that  in  tracing  the  sequence  of  these  elements,  we 
emphasize  only  the  dominant  element ;  two  or  more  elements  may 
exist  at  the  same  time,  especially  case- judgments  and  legislation ; 
but  one  or  the  other  is  so  dominant  as  to  give  the  real  character 
of  the  epoch;  just  as  a  river  has  many  side  eddies,  though  the 
main  current  is  plain.)  Among  the  Hebrews,  however,  a  re- 
versal of  Sir  Henry  Maine's  sequence  is  found;  for  the  flower- 
ing time  of  Hebrew  law  is  found  in  the  records  of  the  Ghemara, 
the  case  law  or  casuistry  of  the  rabbis  in  the  4th  to  6th  centuries 
A.  D. ;  the  rabbis  were  virtually  a  lawyer  class  voicing  popular 
civic  law.  In  the  Scandinavian  communities  (ignoring  local  va- 
riances between  the  three  main  regions)  we  find  probably  the 
purest  record  of  independent  development  in  any  recorded  people ; 
and  here  the  sequence  of  Sir  Henry  Maine  is  found  in  its  ex- 
actness; the  peculiarity  is  that  the  second  and  third  stages  are 
so  sharply  compressed  into  a  short  period;  whereas  elsewhere 
the  second  period  tended  to  be  prolonged.  But  in  the  Anglo- 
Norman  history,  which  is  the  most  mixed  of  all  in  its  influences, 
the  second  stage,  customs  oral  and  written,  is  virtually  omitted 
(unless  we  distort  the  period  of  written  and  printed  case  law 
since  A.  D.  1400  by  calling  it  customary  law) ;  and  in  the  1800's 
the  method  of  legislation  suddenly  dominates  the  entire  mass; 
perhaps  the  Cromwellian  revolution,  had  it  succeeded  in  its 
abortive  legal  changes,  would  have  marked  the  destined  time 
for  a  stage  of  codified  custom ;   but  at  any  rate  it  did  not  in  fact. 

And  it  is  to  be  noted  that  Sir  Henry  Maine's  generalizations 
might  be  interpreted  as  meant  to  explain  the  whole  course  of  a 
people's  legal  development,  from  beginning  to  end.  Yet  the 
above  illustrations  represent  only  segments  from  a  continuous 
legal  life  of  at  least  two  of  the  peoples;    only  the  Romans  and 


Chap.  III.]  CRITIQUE   OF  METHOD  157 

the  Hebrews  have  ended  their  legal  career.  Hence,  the  complete 
legal  life,  if  traced,  might  show  even  further  variations  from 
Sir  Henry  Maine's  sequence. 

Taking  next  the  second  legal  idea,  viz.,  the  organ  for  expres- 
sion of  law,  we  find  that  Rome  does  indeed  exhibit  Sir  Henry 
]\Iaine's  sequence,  viz.,  kings,  oligarchies  (ecclesiastical  and 
political),  democracies  (lawyer  class  and  general  assembly) ; 
and  Sir  Henry  Maine's  sequence  was  based  partly  on  Rome  as  a 
type.  But  even  here  we  find  before  the  end  of  Roman  organized 
life  a  marked  reversion  once  more  to  the  first  stage,  viz.,  imperial 
law ;  and  this  would  signify  either  that  Sir  Henry  Maine's  typical 
sequence  is  imperfect,  or  else  that  the  triple  sequence  is  invari- 
ably followed  by  a  renewed  cycle  of  the  same  sequence ;  and  yet 
in  either  case  it  is  fallacious.  Moreover,  in  Scandinavia,  we  find 
history  emphatically  exhibiting  the  exact  reversal  of  Sir  Henry 
Maine's  sequence,  viz.,  (c),  (b),  (a) ;  while  among  the  Hebrews 
his  first  stage,  viz.,  (a)  kings  as  judges,  is  not  found  at  all.  In 
the  Anglo-Normans,  his  three  stages  are  found  in  his  exact  se- 
quence; and  yet  here  the  influences  were  the  most  mixed,  and 
therefore  the  coincidence  would  seem  to  be  less  reliable  as  re- 
vealing an  inherent  type  of  development. 

In  short,  a  rigid  inductive  method  leaves  little  degree  of  cer- 
tainty to  his  generalized  hypothesis. 

(3),  (4).  Next,  however,  comes  the  necessary  complement  in  this 
method,  viz.,  the  mapping  out  of  the  related  legal  institutions  and 
of  the  social  forces;  so  that  the  clues  to  the  variations  in  the 
selected  institutions  may  be  discovered.  Space  does  not  suffice 
to  expound  the  application  of  this  part  of  the  method.^  It  must 
suffice  here  to  note  that,  taking  these  outlines,  our  task  would  be 
to  prolong  the  chart,  for  each  people  and  each  epoch,  by  filling 
in  the  several  facts  (so  far  as  ascertainable),  and  then  to  study 
to  detect  the  possible  connection  between  some  of  these  facts  and 
the  variations  in  the  selected  institution.  For  example,  both  the 
Scandinavians  and  the  Hebrews,  at  the  earliest  period  of   our 

1  So  far  as  ascertainable,  only  two  authors  have  hitherto  attempted 
any  schematic  tables  of  data  mapped  out  on  this  line. 

Mazzarella's  tables  ("Les  Types  sociaux  et  le  Droit")  are  imperfect, 
because  based  on  his  fundamental  postulate  of  the  distinction  between 
feudal  and  " gentilician "  societies  as  the  controlling  one;  but  his  method 
is  undoubtedly  sound,  and  deserves  the  universal  attention  of  scholars. 

H.  A.  Junod's  "  Life  of  a  South  African  Tribe  "  (1912,  2  vols.)  has  in  the 
appendix  a  schematic  table  representing  the  successive  stages  in  social 
and  economic  conditions  for  a  certain  African  tribe.  So  far  as  it  goes, 
this  is  precisely  the  method  to  be  used ;  but  his  data  are  too  largely  hy- 
pothetical. 


158  CRITERIA    OF    LEGAL    EVOLUTION  [Part  I. 

knowledge,  lack  the  element  of  kingly  justice;  with  what  fea- 
ture of  their  social  life  is  this  lack  connected?  It  could  hardly 
be  connected  w^ith  the  fact  of  clan  and  tribal  organization ;  for 
both  Scandinavians  and  Hebrews  had  this  at  that  period ;  while 
the  Anglo-Normans  lacked  this  entirely,  though  they  had  a  king 
as  organ  of  justice.  Was  kingly  justice  connected  with  the  con- 
quistador ial  relation  of  invaders  to  a  subject  people  largely 
outnumbering  the  conquering  immigrants?  This  feature  existed 
for  both  early  Romans  and  early  Anglo-Normans ;  while  it  was 
lacking  in  Scandinavia;  and  yet,  must  we  not  say  that  it  was 
found  among  the  Hebrews  after  the  exodus?  And  so,  just  as 
we  approach  some  plausible  explanatory  factor,  we  find  ourselves 
again  baffled  and  doubtful.  Continuing  the  search,  we  should 
take  the  principal  legal  institutions,  patriarchal  power,  blood- 
feud,  adoption,  serfdom,  commercial  exchange,  and  so  on;  to 
learn  whether  any  of  these,  or  any  combination  of  them,  sig- 
nifying some  definite  stage  of  legal  development  in  themselves, 
are  associated  with  some  particular  feature  of  the  form  of  ex- 
pression of  law,  e.g.  case-judgments.  If  in  two  or  more  com- 
munities we  could  discover  such  a  connection,  we  might  be  en- 
titled (hypothetically)  to  attribute  that  feature  to  a  particular 
stage  of  legal  development  in  general ;  and  this  hypothesis  could 
then  be  tested  for  other  communities,  and  their  variations  be  ex- 
'plained  by  local  factors. 

The  further  and  wider  such  a  comparison  was  extended,  the 
more  we  should  be  entitled  to  affirm  that  the  discovered  se- 
quences and  causes  represented  general  principles  of  legal  evolu- 
tion. 


PART   II 
FACTORS   OF   LEGAL   EVOLUTION 

IN   GENERAL 

Chapter  IV 

FACTORS  OF  LEGAL  EVOLUTION 

By  Edmond  Picard 

Chapter  V 

CAUSES    FOR    THE    VARIATION    OF    JURAL    PHENOMENA    IN 

GENERAL 

By  Carlo  Nardi-Grbco 

A— GEOPHYSICAL  FACTORS 

Chapter  VI 

LAW  AND  GEOGRAPHY 
,  By  H.  J.  Randall 

/ 

Chapter  VII 

THE  INFLUENCES  OF  GEOGRAPHIC  ENVIRONMENT  ON  LAW, 
STATE,  AND   SOCIETY 

By  Ellen  Churchill  Semplb 

B  — ECONOMIC   FACTORS 

Chapter  VIII 

ECONOMIC  FOUNDATIONS  OF  LAW 

By  Achille  Lorla. 
159 


C  — BIOLOGIC   FACTORS 

Chapter  IX 

ANIMAL  SOCIETIES  AND  PRIMITIVE  HUMAN  SOCIETIES 

By  Adolfo  Posada 


Chapter  X 

NATURAL  ORIGIN  OF  PROPERTY  AMONG  BIRDS,  BEASTS, 

AND  FISHES 
By  R.  Petrucci 


Chapter  XI 

RUDIMENTARY  SOCIETY  AMONG  BOYS 
By  John  Hemsley  Johnson 

D  — RACIAL  FACTORS 
Chapter  XII 

Section  1.  — INTERNAL  AND  EXTERNAL  FACTORS  OF  LEGAL 

DEVELOPMENT 

By  Ludwig  Kuhlenbeck 

Section  2.  — THE  RACE  FACTOR  IN  LEGAL  EVOLUTION 

By  Houston  Stewart  Chamberlain 

Chapter  XIII 

INFLUENCE    OF    NATIONAL    CHARACTER    AND    HISTORICAL 

ENVIRONMENT   ON   THE   DEVELOPMENT   OF   THE 

COMMON  LAW 

By  James  Bryce 

E  — RELIGIOUS   FACTORS 

Chapter  XIV 

THE  INFLUENCE  OF  RELIGION  UPON  LAW  AS  ILLUSTRATED 
BY  THE  IDEA  OF  PROPERTY 

By  Ludwig  Felix 
160 


F  — PSYCHOLOGIC   FACTORS 

Chapter  XV 

SYMPATHY  IN  GROUP  AND  INSTITUTIONAL  SURVIVAL 

By  Edward  D.  Page 

G  — POLITICAL  FACTORS 

Chapter  XVI 

THE  CONSTITUTIONAL  FACTOR  OF  LEGAL  DEVELOPMENT 

By  Emil  Reich 

H  — SOCIAL  FACTORS  — PHYSICAL  FORCE 

Chapter  XVII 

Section  1.  —  THE  STRUGGLE  FOR  LAW 
By  Rudolph  von  Jhering 

Section  2.— THE  COMPROMISE  NATURE  OF  LAW 

By  Adolph  Merkel. 

Chapter  XVIII 

THE  USE  OF  CONFLICT 
By  Walter  Bagehot 

Chapter  XIX 

STRUGGLE  AND  ADAPTATION 

By  Michel-Ange  Vaccaro 

Chapter  XX 

ARBITRAMENT  AND  GUARANTY  IN  THE  ORIGIN  OF  LAW 
By  Gaston  Richard 


161 


Chapter  IV 
FACTORS  OF  LEGAL  EVOLUTION  i 


§2 


§4 


§8 


1.   The  Factors,   or  Motors,   of 
Legal  Evolution. 
First  Factor :     Race. 
3.    Sa,me:     The    Great    Natural 
Races. 
Same :     Influence    of    Diver- 
sity of  Race. 

5.  Same:     Natural    Races    and 

Historical  Races. 

6.  Second     Factor :       Environ- 

ment ;  the  Mesology  of  Law. 

7.  Third   Factor:      Foreign  In- 

trusion. 
Fourth  Factor :     Imitation. 


§9.   Fifth     Factor:     The     Great 
Jurists. 
§  10.   Same :    The  Great  Jurists  in 

History. 
§11.    Sixth  Factor :  Jural  Atavism. 
§  12.    Seventh  Factor:    Progenism. 
Eighth     Factor :        Juridical 

Technic. 
Ninth  Factor:  Density  of 
Population. 
§  15.  Tenth  Factor :  Solidary  Ac- 
tion of  Great  Social  Forces 
and  the  several  Parts  of 
Law. 


13. 


14. 


§  1.  The  Factors  or  Motors  of  Legal  Evolution.  When  we 
study  legal  evolution  with  a  view  to  discovering  the  general 
principles  which  control  it,  we  find  that  certain  principal  factors 
stand  out  prominently  and  merit  special  inquiry/  These  great 
motive  forces  —  cosmic  coefficients  —  differ  in  kind  and  intensity 
in  the  different  periods  and  regions.  Their  effects  may  be  cumu- 
lative or  counteractiveT-accofdmg  to  circumstances.  They  do 
not  operate  in  isolation,  but  with  synergy  and  synchronism. 
In  their  totality  they  produce  the  several  national  bodies  of  law. 
A  people's  individuality  and  originality  —  that  compact  and 
complete  system  of  its  own  energies  which  impresses  its  members 
with  the  idea  of  "my  country" — finds  expression  notably  in 
its  law.  In  passing  from  one  nation  to  another,  we  observe 
shades  of  jural  distinctions  which  become  material  differences 
when  the  nations  belong  to  different  races.  As  the  plant  (to  use 
von  Ihering's  illustration),  though  appearing  to  absorb  nothing 


^  [By  Edmond  Picard,  Professor  of  Law  in  the  New  University  of 
Brussels,  Senator  of  Belgium,  and  former  President  of  the  Brussels  Bar 
Association.  This  chapter  is  §§  140-154  of  the  author's  "Le  Droit  Pur" 
(Paris,  Ernest  Flammarion,  1910).  The  last  few  sections  have  been 
abbreviated. 

The  translation  is  by  John  H.  Wigmore,  co-editor  of  this  series.] 

163 


I 


\ 


164  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

from  without,  does  in  fact  draw  its  nourishment  from  the  soil 
and  the  air,  so  all  Law  borrows  imperceptibly  its  vital  elements 
from  the  community  in  which  it  has  its  roots  and  the  human 
atmosphere  amidst  which  it  grows. 

The  notion  that  the  legislator  is  all-powerful  is  an  error;  the 
truth  is  that  the  laws  of  a  people  are  bound  to  be  a  reflection  of 
its  psychology.  It  is  a  remark  of  Herbert  Spencer's  that  a  nation's 
law  is  the  natural  product  of  its  traits;  and  before  him  Cicero 
told  us  that  to  learn  what  man's  law  is  we  must  study  his  nature. 
The  law  is  worthy  of  our  respect  and  homage  only  as  representing, 
not  a  collection  of  arbitrary  rules,  but  the  fertile  (though  painful) 
labors  of  a  whole  people's  life,  —  the  organic  product  of  History. 
And  it  secures  that  respect  only  through  that  instinctive  devotion 
which  it  inspires  in  those  who  feel  its  accord  with  their  inmost 
nature. 

Multiple,  then,  as  are  the  factors  which  go  to  form  law,  it  is 
not  surprising  that  the  various  systems  are  composite, —  mix- 
tures, amalgams,  and  sometimes  jumbles.  In  large  part,  they 
are  the  stratifications  of  unconscious  ideas,  —  not  a  voluntary 
product  of  man  in  isolation,  but  collectively  of  the  whole  nation. 
Like  language,  law  too  includes  native  stock,  foreign  infiltrations, 
elements  coming  from  outside  but  transformed  by  native  char- 
acter, and  always  an  evolution  of  the  whole.  The  scholastic 
jurists  who  believe  in  the  possibility  of  fixing  law  are  as  deluded 
as  the  academic  pedants  who  believe  in  the  fixation  of  language. 

These  motor-factors  can  never  —  such  is  their  mysterious 
nature  —  be  all  discovered  and  enumerated.  But  those  most 
obvious  to  our  imperfect  vision  are  the  following:  L  Race; 
2.  Environment;  3.  Foreign  intrusion;  4.  Imitation;  5.  Great 
jurists;  6.  Atavism;  7.  Progenism;  8.  Juristic  technic;  9. 
Population-density;    10.  Solidarity  of  social  forces. 

§  2.  First  Factor:  Ra^ce.  Race  is  the  dominant  factor  in  the 
aspect  which  human  activity  takes  in  realizing  itself.  This  truth 
has  just  begun  to  receive  acceptance  among  Europeo-Ameri- 
can  nations;  it  has  been  obscured  by  two  prepossessions,  first 
the  childish  idea  of  the  sole  origin  of  the  race  from  Adam  and 
Eve,  as  accepted  by  Christian  theology,  and  secondly,  the  idea  of 
the  supposed  unity  of  man,  no  less  obstinately  cherished  by  sen- 
timental ideologues. 

The  monogenism  of  the  Biblical  tradition  —  one  original  couple, 
placed  by  Jehovah  in  a  terrestrial  paradise  —  has  been  repudiated 
by  science.     The  truth  of  polygenism  must  now  be  conceded,  i.e. 


Chap.  IV.]  PRINCIPAL  FACTORS  165 

that  groups  of  human  beings,  with  fundamental  physical  and 
psychical  differences,  appeared  gradually  upon  the  prehistoric 
earth  at  different  times  and  places.  And  this  polygenism  also 
disposes,  at  the  same  stroke,  of  the  philanthropic  dream  that  all 
human  beings  are  equivalent,  in  racial  elements,  and  that  to  deny 
this  is  to  repudiate  the  constitutional  pronouncement  that  ''  all 
men  are  equal." 

Polygenism  reveals  to  us  these  ethnic  groups  of  remote  origin, 
having  a  common  -human  element,  but  also  essentially  and  irre- 
ducibly  different  in  a  number  of  intellectual  traits,  notably  as  to 
law  and  justice.  In  the  material  of  these  traits,  there  is  no  per- 
manent borrowing  by  one  from  the  other.  The  groups  are  dis- 
similar, and  they  evolve  along  their  original  types  in  strict  relation 
to  their  physiological  and  cerebral  nature.  Some  of  them  — 
millions  in  number —  have  probably  disappeared;  others  are 
—  relatively  few  —  in  the  course  of  disappearance,  —  the  Ameri- 
can Indians,  the  Australians,  the  Arctic  peoples. 

The  unification  of  terrestrial  humanity  —  a  billion  and  a  half 
souls  —  as  a  single  identical  whole,  whether  in  religion,  in  language, 
in  art,  or  in  law,  is  a  mere  Utopia,  in  all  probability.  And  even  if 
it  could  be  made  to  happen,  it  would  be  the  ^consummate  exhibi- 
tion of  artificiality,  of  tyranny,  and  of  fragility. 

§  3.  Same:  The  Greut  Natural  Races.  We  must  not  confuse 
the  so-called  "  historic  "  races  —  i.e.  the  entities  produced  by  cir- 
cumstances—  with  the  great  natural  races.  No  one  of  the 
latter  is  due  to  any  contingent  circumstance.  "  Res  nata,  non 
facta."  They  are  supra-national.  They  exist  by  the  same  right 
as  do  the  zoological  groups,  and  with  the  same  persistence.  They 
have  no  set  period  of  existence;  they  undergo  modification  only 
after  lapses  of  time  longer  than  any  of  which  we  have  conception 
or  in  which  our  action  can  be  exercised.  These  races  are  as  un- 
changeable in  terrestrial  life  as  are  the  mountain  ranges. 

Not  reckoning  the  races  of  small  population,  there  remain  five 
races  as  to  whose  distinctness  there  can  be  no  difference  of  opinion : 
Aryans,  Semites,  Mongols,  Hindustans,  Negroes. 

The  Aryans  may  be  termed  Europeo-Americans,  if  we  use  their 
geographic  distribution  to  define  them  more  accurately.  It  is  a 
more  accurate  term  than  Indo-European,  which  implies  that  the 
Aryan  race  is  still  represented  in  Hindustan.  The  only  Aryans 
now  to  be  found  there  (probably)  are  the  200,000  English  who 
rule  over  200,000,000  natives.  The  term  also  implies  that  the 
Aryan  race  originated  in  the  Bengal  peninsula,  whereas  the  most 


k 


166  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

recent  researches  (summed  up  by  Tylor)  prove  that  they  occu- 
pied the  plain  bordering  the  northern  Uttoral  of  Europe,  whence 
one  of  their  branches  reached  Asia.  The  Semites  are  spread 
through  northern  Africa  and  western  Asia,  with  considerable  in- 
filtrations in  the  southern  ends  of  Europe,  and,  by  the  Jewish 
branch,  in  many  other  countries.  The  Mongols,  or  Turanians, 
are  in  China,  Japan,  and  Indo-China.  The  Hindustans  are  in 
Bengal,  Siam,  and  Burma.  The  Negroes  are  in  central  Africa, 
with  offshoots  in  other  parts. 

Within  these  racial  entireties,  all  the  members  cerebrate  like  a 
single  man,  in  the  various  fields  of  human  activity,  subject  only 
to  the  national  shades  of  difference.  A  single  race  has,  in  its 
typical  elements,  a  single  soul  and  body.  This  soul  represents 
the  mobilization  of  all  its  ideas  and  sentiments.  It  constitutes 
a  totality  complex  and  superb,  branching  into  all  the  modes  of 
life,  —  a  powerful  unity  which  manifests  itself  in  history  with 
not  one  interruption,  not  one  self-contradiction,  not  one  durable 
deviation. 

Physically,  common  opinion  distinguishes  these  races  by  the 
skin-color;  while  science  distinguishes  them  by  anatomic  and 
physiologic  features.  But  a  keener  insight  is  represented  by  the 
view,  now  gaining  acceptance,  which  differentiates  them  by  their 
psychical  traits,  varying  throughout  the  gamut  of  social  forces, 
viz.  Language,  Religion,  Art,  Morals,  Law,  etc.  The  racial 
concepts  in  these  broad  fields  combine  to  form  distinct  civiliza- 
tions.    And  these  psychic  traits  are  as  fixed  as  the  physical  ones. 

The  hybrid  peoples  are  of  less  importance  than  one  might  sup- 
pose. Where  crossings  of  breed  have  formed  mongrels,  there  en- 
sues promptly  either  sterility  or  a  separation  among  the  descend- 
ants with  a  return  to  the  original  type.  In  spite  of  disguises  of 
costume  or  imitation  of  manners,  a  man  cannot  escape  his  race 
and  his  skin.  National  groups  formed  by  such  mixtures  consist 
ultimately  of  two  races  juxtaposed,  like  peas  and  beans  in  a  basket 
together,  and  not  truly  blended  into  a  new  species.  In  Spain, 
for  example,  even  the  superficial  perception  of  the  traveler  de- 
tects, alongside  of  the  true  Europeans,  a  vast  number  of  Semites, 
—  the  raw  material  of  race  in  Spain,  remnants  of  the  Carthaginian 
and  Arab  occupations. 

Among  the  ^ve  dominant  races,  is  there  some  hierarchy  of  grades 
of  superiority  ?  Gobineau  awarded  first  rank,  in  general,  to  the 
Europeo-Americans.  And  one  must  indeed  acknowledge  that 
they  seem  like  an  advance-guard  for  humanity.     A  strength  to 


Chap.  IV.]  PRINCIPAL  FACTORS  167 

create  is  theirs ;  while  the  others  have  only  the  strength  of  inertia, 
of  stagnation,  or  of  imitation,  —  an  ability  to  live  at  others'  ex- 
pense without  genuine  production  of  their  own.  The  Aryan 
race  is  intrinsically  eclucable,  indefinitely  progressive,  inexhaust- 
ibly inventive,  and  instinctively  a  colonizer. 

But  to  pursue  these  considerations  would  be  to  enter  into 
ethnology,  and  what  is  here  said  must  be  merely  that  which  serves 
to  explain  the  law.  It  remains  only  to  note  that  for  solving  these 
problems  we  must  never  seek  our  data  in  the  isolated  individual ; 
but  only  in  the  masses  of  men.  The  life  of  the  mass  is  more 
determinate  and  more  visible  than  that  of  individuals.  Polyps 
disclose  noticeable  specific  differences  when  examined  in  entirety, 
while  the  detached  cell  of  one  species  may  not  perceptibly  vary 
from  the  cell  of  another  species.  And,  moreover,  no  argument 
founded  on  exceptional  cases  is  valid,  in  dealing  with  these  large 
questions;  for,  as  Hergen  puts  it,  the  existence  of  flying  fishes 
does  not  prove  that  fishes  are  birds. 

§4.  Same:  Influence  of  Diversity  of  Race  on  the  Evolution 
of  Law.  Throughout  the  ages  this  diversity  of  race  has  influenced 
indelibly  the  generation  of  law.  In  law,  as  in  other  parts  of  life, 
the  heart  of  the  race  is  what  we  must  seek  to  discover,  —  seek 
to  hear  it  beat.     Without  this,  what  we  find  is  merely  deceptive, 

—  an  imitation  and  a  travesty.  Law  (to  use  Aristotle's  parallel) 
is  not  like  fire,  which  burns  the  same  for  the  Persians  as  for  the 
Greeks.  Amid  all  its  varied  manifestations,  it  remains  an  ethnic 
instinct,  —  one  of  the  functions  of  the  soul.  And  although,  as 
we  feel  this  instinct  within  us,  we  tend  to  receive  the  illusion  of  a 
free  personal  will,  and  say,  "  /  am  thinking  a  law  ",  nevertheless 
what  we  ought  to  say  is,  "  It  is  thinking  a  law  in  me", — just  as  we 
say  naturally,  "  It  is  raining  in  our  town  ",  "  It  is  blowing  a  gale 
this  morning."  We  must  acknowledge  resignedly  that  a  thought 
comes  when  it  wills,  not  when  we  will.  Instead  of  resenting  this, 
we  must  enjoy  and  share  it,  as  the  most  fascinating  of  truths. 
We  do  not  resent  the  orbits  of  the  planets,  nor  the  rhythm  of  the 
tides.  The  flow  of  Law  should  be  to  us  even  as  the  flow  of  the 
Nile. 

An  ethnic  group  creates  and  develops  its  Law  in  the  same  way 
as  itself  grows.  The  immutable  soul  of  the  races  (in  Le  Bon's 
phrase)  weaves  for  itself  its  own  destiny.     There  is  no  world-law, 

—  only  racial  laws.  The  absolute  internationalization  of  law  is 
a  mere  dream.  A  single  system  of  law  could  exist  only  on  an 
earth  which  had  but  a  single  language.     The  most  that  could  be 


168  FACTORS    OF   LEGAL   EVOLUTION  [Part  II.' 

pronounced  artificially,  by  agreement,  would  be  a  sort  of  juridical 
Volapiik. 

As  between  the  several  races  themselves,  law  differs  sometimes 
in  its  general  institutions  and  sometimes  in  its  details.  Each 
oae  possesses,  as  it  were,  a  different  physiognomy  for  its  law. 
To  verify  this  assertion,  we  must  not  limit  our  observation  to  those 
jural  features  which  have  an  almost  inevitable  likeness,  such  as 
sale  or  exchange ;  but  must  include  the  larger  institutions  such  as 
marriage,  property,  and  succession,  and  even  the  grand  divisions 
of  penal,  public,  and  administrative  law.  Moreover,  among 
primitive  peoples,  in  the  origin  of  law,  the  differences  are  less 
perceptible;  for  the  racial  traits  are  as  yet  less  specific  and  less 
colored  than  in  the  periods  of  full  flowering,  where  all  features 
take  on  a  more  clearly  marked  contour. 

The  resemblances  among  laws  of  different  races  are  due  to 
factors  other  than  race;  they  arise  from  the  common  human 
stock.  Moreover,  the  "  structure "  or  jural  operation  is  as 
inalterable  as  that  of  the  operations  of  mathematics. 

§  5.  Same :  Natural  Races  and  Historical  Races.  Linguistic 
usage  applies  the  term  "  race  "  to  include  peoples  who  had  once 
a  single  origin  but  bear  now  on  the  surface  certain  differences 
due  to  the  chance  of  history;  the  Latins,  the  Teutons,  and  the 
Slavs  (barring  the  casual  infiltrations)  are  all  Aryans.  But 
common  discourse  also  speaks  of  the  Slavs,  the  Teutons,  and  the 
Latins  as  separate  "  races."  And  this  usage  has  led  to  countless 
vagaries,  both  laudatory  and  disparaging.  It  is  the  main  support 
of  chauvinism.  None  the  less,  it  is  unsound;  these  peoples  are 
like  flowers  of  the  same  species,  differing  only  in  the  colors  of 
their  petals,  like  carnations  from  the  same  garden-bed.  In  cor- 
rectness, we  should  refer  to  the  Latin  (or  Slav  or  Teuton)  variety 
of  the  Aryan  race,  or  the  Jewish  variety  of  the  Semitic  race.  "  Res 
facta,  non  nata."  No  doubt  we  are  justified  in  emphasizing  the 
fact  that  differences  exist  between  these  groups,  —  differences 
marked  out  in  the  lapse  of  time  by  distinctions  of  environment 
and  by  contingencies  of  history.  But  nations  are  what  the  course 
of  history  makes;  races  are  what  nature  made.  And  "race" 
is  a  term  ill  adapted  to  distinguish  merely  the  varieties  of  a  single 
ethnic  stock.  The  Arabs,  the  Chinese,  the  Negroes,  do  not  make 
this  mistake;  in  their  eyes  all  whites  are  but  one  race-mass, 
whatever  their  nation. 

In  the  following  passage,  Le  Bon  has  well  summed  the 
difference    between   Race   and   Variety    (although  he   at   times 


Chap.  IV. J  PRINCIPAL  FACTORS  169 

attaches  to  the  latter  that  importance  which  belongs  rather  to 
the  former) :  "  The  ancestral  ideas  are  the  inheritance  of  the 
race,  a  bequest  from  ancestors  earlier  or  later,  a  bequest  re- 
ceived at  birth  and  decisive  of  the  mainsprings  of  conduct.  The 
acquired,  or  intellectual,  ideas  are  those  which  man  obtains  from 
his  environment  and  education ;  they  serve  to  supply  his  reason- 
ing and  his  discussions,  but  seldom  to  guide  him.  Their  in- 
fluence on* his  actions  is  little  or  none  until,  by  the  repeated  ac- 
cumulations of  inheritance,  they  enter  into  his  unconscious  being 
and  become  his  fixed  sentiments.  Though  acquired  ideas  may 
sometimes  succeed  in  overcoming  ancestral  ideas,  it  is  only  when 
the  latter  have  been  annulled  by  contrary  inherited  ones,  as 
sometimes  where  different  races  have  been  crossed ;  for  then  the 
person  becomes  a  sort  of  '  tabula  rasa.'  He  has  lost  his  ancestral 
ideas;  he  is  merely  a  mongrel,  without  moral  stamina  or  fixed 
traits,  at  the  mercy  of  every  impulse  from  without." 

Between  peoples  who  are  only  varieties  of  the  same  race  (Europeor- 
Americans,  for  example)  there  do  indeed  occur  antipathies,  often 
violent.  But  the  identity  of  their  civilizations  is  evidenced  by 
their  customs,  their  language-relations,  their  forms  of  government, 
the  regulation  of  their  military,  commercial,  and  agricultural 
systems,  their  homes,  food,  drink,  religion,  pleasures,  arts,  and 
literature,  —  in  short,  by  nearly  all  of  their  traits.  And  their 
differences  of  Law  are  among  the  least ;  they  can  be  explained 
as  transitory  only ;  and  they  give  promise  of  a  movement  towards 
jural  unification.  And  this  tendency  would  seem  to  be  only  a 
return  to  that  unity  in  the  period  of  their  primitive  law ;  for  the 
patient  researches  of  scholars  exhibit  it  as  identical,  in  spite  of 
its  remoteness  in  time ;  witness  the  duplication  of  ideas  in  the  old 
Brehon  law  of  Ireland  and  in  the  law  of  the  Ossetes  of  the  Caucasus. 

It  is  particularly  in  the  legal  inventions  of  modern  times  (not 
fettered  by  tradition  and  atavism)  that  this  tendency  to  unifica- 
tion is  notable,  —  in  the  law  of  patents,  of  copyright,  and  of 
trademark.  Not  only  is  the  general  jural  mechanism  the  same, 
but  the  details  repeat  themselves.  Numerous  congresses  have 
helped  towards  this  identification  in  those  subjects  (for  example, 
maritime  law)  where  international  relations  are  most  frequent. 
The  great  Codes  may  have  differed  in  their  authorship;  but  in 
their  basis  of  ideas  are  found  striking  analogies.  It  is  impossible 
not  to  feel  that,  in  the  profundities  beneath  their  consciousness, 
these  peoples,  descended  from  the  same  stock,  were  controlled 
by  the  psychic  force  of  the  race,  common  to  all  and  imperishable. 


170  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

§6.  Second  Factor:  The  Environment.  The  Mesology  of  Law. 
Darwin  says :  "  If  we  examine  the  plants  which  grow  on  a  bank 
or  at  the  edge  of  a  dense  forest,  we  cannot  doubt  that  the  young 
stalks  and  their  leaves  take  the  positions  suitable  to  insure  for 
these  organs  the  best  light  and  thus  to  make  them  capable 
of  effecting  the  decomposition  of  the  carbonic  acid."  So  too, 
"  mutatis  mutandis  ",  the  environment  in  which  human  societies 
live  must  be  examined.  It  is  the  source  whence,  almost  exclu- 
sively, each  one  has  drained  the  material  and  moral  elements, 
i.e.  the  economic  treasures,  destined  to  satisfy  its  needs.  And 
this  supply  continues  even  more  abundantly,  and  in  spite  of  the 
growth  of  a  network  of  travel  and  transportation  which  has  so 
connected  the  farthest  parts  of  the  world  that  one  can  no  longer 
speak  of  "  the  ends  of  the  earth." 

f  Montesquieu  in  ''  The  Spirit  of  the  Laws  "  has  an  excellent 
chapter  on  what  might  be  described,  in  geologic  terms,  as  the  geo- 
g!-aphic  imperative  of  Law. 

^Environment  includes  certain  main  factors,  which  by  influencing 
body,  brain,  and  habits,  i.e.  the  customary  behavior  of  a  people, 
affect  its  Law,  which  is  an  emanation  of  its  customs  and  bears 
constant  and  close  relation  to  them.  These  include :  climate  — 
cold,  warm,  or  temperate  (which  in  turn  depends  upon  latitude) ; 
land-level  —  plain  or  mountain ;  distance  from  the  sea ;  coastal 
features  —  flat  or  rock-bound;  nature  of  the  surface  —  wooded 
or  cleared ;  quality  of  soil  —  cultivable  or  sterile.  All  these  and 
other  variations  of  land  and  of  atmosphere  show  their  traces  in 
the  jural  system,  either  by  creating  species  or  by  modifying 
varieties.  A  countless  number  of  statutes  and  ordinances  have 
no  other  origin  than  these  differences  of  terrestrial  environment. 
Brazil  and  Russia,  because  they  are  different  geographic  regions, 
will  therefore  have  many  differences  of  law. 

This  factor,  however,  is  relative  only.  The  Turks,  as  Hegel 
pointed  out,  live  in  the  same  region  as  the  Greeks,  and  yet  they 
are  not  like  peoples.  Race  dominates  over  climatology.  The 
contact  between  race  and  the  geologic  environment  produces  a 
plant  whose  nature  is  dependent  on  the  two  factors,  —  the  prod- 
uct being  almost  identical  when  separate  varieties  of  the  same 
race  are  affected  by  similar  environments,  and  changing  only  when 
the  race  changes.  Arab  and  European,  transported  to  the  center 
of  Africa,  have  produced  civilizations  essentially  different,  es- 
pecially in  their  law.  Englishmen  at  Spitzbergen  obey  legal 
customs  which  only  remotely  resemble  those  of  the  Esquimaux. 


Chap.  IV.]  PRINCIPAL  FACTORS  171 

§  7.  Third  Factor:  Foreign  Intrusion.  Peoples  and  races  have 
mingled,  —  sometimes  peacefully,  sometimes  by  force ;  now  by 
conquest,  and  now  by  infiltration.  In  either  case  the  victor, 
whether  openly  or  covertly,  whether  by  despotic  and  less  suc- 
cessful means  or  by  indirect  but  more  intense  methods,  fixes 
its  customs  upon  the  conquered,  —  its  art,  religion,  law,  and  some- 
times its  language.  Robespierre  was  partly  right  when  he  called 
it  ''  the  most  extravagant  absurdity  that  a  statesman  could 
imagine  "  to  suppose  that  one  people  could  by  mere  force  come  and 
compel  another  people  to  adopt  its  laws  and  constitution ;  never- 
theless, even  when  the  intruding  conqueror  respects  the  law  of  the 
conquered,  the  influence  of  the  former  inevitably  is  felt,  by  mere 
contiguity.  The  Germanic  invasion  of  Roman  Gaul  is  a  suf- 
ficiently well-known  instance.  They  did  indeed  apply  the  prin- 
ciple of  the  "  personality  "  of  law ;  i.e.  they  allowed  the  Gallo- 
Romans  to  be  judged  by  their  own  law,  while  the  conquerors 
kept  their  Germanic  law  for  themselves;  and  yet,  five  centuries 
later,  these  two  systems  had  become  merged  into  a  single  one, 
the  "  Coutumes  "  of  old  France.  For  when  two  peoples  of  the 
same  racial  stock  mingle,  the  process  ends  in  a  compromise  mix- 
ture, an  amalgamation ;  homogeneity  ensues  from  heterogeneous 
elements.  When  the  Code  Napoleon,  in  later  times,  was  imposed 
by  conquest  on  Belgium  and  the  Rhine  provinces,  it  worked  well, 
and  was  continued  in  force  long  after  the  political  separation; 
for  these  nations  were  in  ultimate  origin  brothers  of  the  same 
stock,  —  in  spite  of  the  frothings  of  Gallophobes  and  Germano- 
phobes. 

If,  however,  the  two  peoples  are  of  different  natural  races,  the 
result  is  quite  otherwise.  The  national  law  experiences  a  strong 
reaction.  The  influence  is  no  longer  one  of  filiation  into  an  ethnic 
family,  but  of  antagonism.  The  two  laws  persist  in  hostility 
side  by  side,  without  interpenetration.  Le  Bon  has  truly  re- 
marked on  "  the  sure  instinct  which  taught  ancient  peoples  to 
distrust  the  stranger."  The  Aryan-Semitic  question,  in  all  its 
aspects,  is  at  bottom  due  to  no  other  cause ;  in  spite  of  the  chaos 
of  explanations,  inconsistent  and  sometimes  absurd,  the  all- 
sufficient  one  is  the  defensive  instinct  of  Aryan  peoples  against 
the  intrusion  of  a  psychically  distinct  individuality,  which  indeed 
uses  Aryan  law  but  without  suspecting  that  it  denaturizes  what 
it  uses. 

WTien  the  mixture  is  one  of  laws  of  the  same  family,  the  more 
developed  law  generally  has  the  preponderant  influence.    Such 


^ 


172  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

was  the  result  with  Roman  law  in  Europe;  it  represented  the 
same  type  as  the  Germanic  law,  but  at  a  more  advanced  stage; 
and  when  the  Germanic  invasions  brought  the  two  systems  into 
contact,  the  Roman  law  naturally  exercised  a  considerable  in- 
fluence. And  its  persistence  throughout  the  Middle  Ages  as 
"  written  reason  ",  and  the  conservation  of  its  power  even  to 
modern  times,  exhibiting  still  an  irresistible  force  after  the  lapse 
of  fourteen  centuries  —  this  domination  is  neither  mysterious  nor 
factitious  when  we  consider  the  principles  above  expounded. 

Compare,  for  example,  the  fate  of  the  Roman  law  in  western 
Asia  and  northern  Africa,  where  the  Semitic  race  prevails.  These 
regions,  equally  with  Europe,  were  a  part  of  the  Empire;  and 
its  dream  was  to  hold  two  naturally  different  races  under  a  unified 
dominion.  But  the  dream  was  impossible;  Roman  law  gained 
scarcely  any  influence,  and  was  soon  submerged.  And  the  reason 
was  that  the  legal  mind  of  the  Semitic  peoples  was  alien  to  the 
Roman  mind ;  while  the  Germanic  one  was  kindred.  The 
Punic  wars,  merciless  as  they  were,  might  have  taught  this  polit- 
ical lesson ;  but  the  Caesars  never  learned  it. 

§  8.  Fourth  Factor :  Imitation.  Tarde,  in  his  clever  work 
"  The  Transformations  of  Law  ",  attributes  to  Imitation  a  highly 
important  —  perhaps  an  exaggerated  —  part  as  a  factor  in  legal 
evolution.  Similar  views  have  been  expressed  by  Sir  Henry 
Maine  in  his  "  Ancient  Law  "  and  by  Le  Bon  in  "  Man  and  His 
Societies." 

It  must  be  conceded  that  the  imitation  of  legal  institutions, 
present  or  past,  which  another  people  appears  to  possess  in  greater 
effectiveness  is  a  process  which  satisfies  a  natural  instinct  and  temp- 
tation, and  is  often  to  be  observed.  It  is  a  sort  of  contagion. 
But  those  scholars  who  fear  that  too  much  importance  is  being 
conceded  to  race  and  atavism  will  in  vain  proclaim  for  Imitation 
that  .decisive  influence ;  for  a  deeper  examination  would  ascribe 
it  to  the  other  two  irresistible  factors.  This  juraljnimicry,  this 
hypnotic  duplication,  is  revealed  to  us  (when  the  process  of  adap- 
tation is  successful)  as  nothing  more  than  a  people's  instinctive 
recognition  that  in  another  people,  more  advancedJi^n  itself 
but  of  the  same  race,  an  institution  which  fits  its  own  being  has 
already  been  brought  into  existence.  Such  experiences  lighten 
up  a  nation's  hidden  consciousness  and  its  destiny  in  the  world  of 
law. 

Children  learn  in  this  way  their  native  language;  they  have 
the   appropriate  traits   and   desires,    and   an   unconscious   store 


Chap.  IV.]  PRINCIPAL   FACTORS  173 

of  inherited  susceptibilities;  everything  is  ready;  the  words 
which  they  hear  fall  on  prepared  soil;  their  progress  is  mar- 
velously  rapid,  considering  that  what  they  are  acquiring  is  so 
complex.  The  process,  one  might  say,  is  merely  an  awakening 
of  what  lay  dormant  in  them. 

But  Imitation  is  sometimes  employed  in  n  mnnt  mifijnruidrd  Tnnn 
ner.  Witness  the  attempt  to  appl^he  Code  Civil  of  Napoleon 
to  the  Japanese  Empire,  a  Mongolian  race.^  TKe  Europeo- 
American  race,  however,  in  its  movenTents  for  legal  reform  among 
its  several  peoples,  justly  make  use  of  imitation,  by  eclectic  studies 
of  comparative  law.  The  processes  of  transplantation,  grafting, 
cutting,  inoculation,  can  here  be  observed,  —  a  sort  of  juridical 
heteropathy. 

An  interesting  instance  of  Imitation  is  found  in  judicial  law, 
viz.  when  it  shows  a  tendency  to  repeat  in  current  cases  the  de- 
cisions given  in  former  ones.  This  observance  of  habit,  or  fash- 
ion, is  known  as  the  "  authority  of  precedents",  "  auctoritas  re- 
rum,  perpetuo  similiter  judicatarum."  The  method  is  valuable 
only  when  the  reasons  for  the  earlier  decision  are  again  verified 
in  the  later  case ;  but  for  the  judge  merely  to  imitate  blindly  the 
accepted  opinion  of  the  past  is  a  pitiable  practice. 

§  9.  Fifth  Factor :  The  Great  Jurists.  And  so  we  arrive  at  the 
Great  Jurists,  —  called  by  the  Romans  "  the  founders  of  Law  '* 
("  juris  conditores  "),  —  the  elite,  the  protagonists,  the  special- 
ists, the  leading  actors,  the  dictators  of  law. 

Great  social  forces  spread  themselves  like  a  fluid  throughout 
universal  mentality.  They  are  scattered  sparsely  amidst  the 
human  agglomeration.  In  the  several  channels  of  language, 
religion,  la w^  and  the  like,  they  show  themselves  by  a  fluctuating 
distribution  of  a  certain  total  of  beliefs,  needs,  and  desires.  As 
they  traverse  the  being  of  humanity,  they  impart  a  vibrant  and 
resonant  cerebration.  But  this  diffusion  and  reception  do  not 
exhibit  in  all  the  same  force  or  intensity  (in  the  jural  sense).  At 
intervals  there  is  an  accumulation  and  an  incarnation  in  marked 
individualities,  —  great  artists,  great  prophets  or  religious  leaders, 
great  despots,  and  great  Jurists.  These  are  the  conquerors  of 
souls,  predisposed  and  predetermined,  —  the  "  men  of  destiny  ", 
the  supermen. 

Sometimes  this  accumulation  of  force  rises  to  the  degree  of 
genius.     Modern  thinkers  have  asserted  that  genius  borders  on 

1  [That  the  Japanese  people  can  be  said  to  be  of  Mongolian  race  is  at 
least  doubtful;   probably  the  majority  are  not.  —  Ed.1 


174  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

insanity ;  Moreau  of  Tours  put  forth  this  hypothesis ;  Lombroso 
and  Nordau  verified  it.  The  theory  is  that  the  mental  constitu- 
tion which  sets  apart  some  men  by  the  originaHty  of  their  ideas, 
the  eccentric  energy  of  their  emotions,  and  the  transcendence 
of  their  intellectual  powers,  has  its  origin  in  the  same  organic 
conditions  as  those  various  psychical  disturbances  of  which  in- 
sanity is  the  fullest  expression.  And  it  may  be  true  in  the  domain 
of  art,  of  religion,  or  of  politics.  But  the  theory  is  less  verifiable 
in  the  calmer  and  more  balanced  region  of  legal  science.  Ulpian 
and  Papinian,  Dumoulin  and  Domat,  Pothier,  Demolombe,  and 
Laurent,  Ihering  and  Maine,  —  these  great  personalities  have 
never  been  open  to  the  charge  of  an  epileptic  or  paranoidal  taint, 
in  body  or  in  mind.  These  types  of  famous  jurists,  and  others 
more  numerous,  have  merely  revealed  that  evolution  which  was 
going  on  in  the  hidden  depths  of  the  social  consciousness,  —  re- 
vealed it  by  making  it  more  perceptible  in  miniature,  and  often  in 
the  most  correct  proportions.  They  obeyed  profound  impulses, 
of  which  they  themselves  became  the  most  facile  outlets,  — =  as 
the  lava  erupts  from  the  earth  at  the  most  friable  points.  Luther 
could  so  speedily  disseminate  the  Reformation,  and  Mahomet 
Islamism,  because  each  of  them  already  existed  in  embryo  in  the 
masses  who  became  their  converts. 

The  great  Jurists,  then,  like  all  great  men,  are  either  precursors, 
prophesying  the  future;  or  analysts,  penetrating  into  life;  or 
generalizers,  overcoming  resistance.  And  they  are  this  by  in- 
stinct and  spontaneously,  not  by  their  own  choice.  They  either 
prepare,  or  unfold,  or  concentrate.  Some  make  ready  the  path; 
some  increase  force  or  light.  And  all  possess  a  little  of  the  Prome- 
theus. Carlyle  asserts  that  whatever  is  truly  great  in  them  broke 
forth  from  the  depths  of  the  people.  They  build  with  stones  which 
have  been  hewn  and  polished.  They  are  creators  in  appearance 
only.  They  know  truths  which  others  have  only  vaguely  sensed. 
Their  genius  enables  them  to  understand  in  advance  the  jural 
needs  of  society  at  large.  To  attribute  exclusively  to  the  force 
of  individual  effort  what  is  so  obviously  collective  and  indivisible 
is  a  huge  mistake.  Social  evolution  combines  with  individual 
evolution  in  their  persons,  both  being  unconscious  and  spontaneous. 
Neither  directs  the  other;  as  emanations,  both  are  concomitant 
and  parallel.  Both  share  Nature's  infallibility  and  irresistibility. 
Great  men,  with  their  phenomena  of  illumination,  are  like  caverns 
heaped  with  treasures;  they  contain  in  their  hollows  all  the 
ideas  of  a  race.     The  most  brilliant  are  those  in  whom  the  race- 


Chap.  IV.]  PRINCIPAL  FACTORS  175 

incarnation  was  most  concentrated.  When  best  they  understand 
their  mission,  they  do  but  give  forth  a  formula  for  the  unclear 
aspirations  of  the  multitude;  they  express  the  thought  of  those 
who  speak  not.  Endowed  with  a  sort  of  sorcery,  they  employ 
the  forces  external  to  themselves  to  realize  the  ideas  of  which 
they  are  the  seers  and  the  diviners,  the  revealers  and  the  charmers. 
They  are  seen  to  be  simply  the  awakeners  of  souls,  heralds,  and 
fellow- workers  of  the  masses,  —  stage-managers  for  a.  drama 
composed  by  nameless  authors. 

Those  who  believe  that  the  great  jurists  Tnake  the  Law  are  as 
grossly  in  error  as  he  who  would  assert  that  the  new  leaves  make 
spring-time,  or  that  the  crow  of  chanticleer  causes  the  rising  of 
the  sun.  Such  a  belief  puts  effect  before  cause.  Genius  is  a 
factor  of  Nature ;  it  is  subject  to  the  same  principles  as  the  vege- 
table and  the  mineral  kingdom;  its  strength  is  dominated  by 
that  of  the  universe.  They  are  the  depositaries  of  power,  the 
tabernacles  of  new  ideas  in  embryo;  they  form  the  patriciate, 
the  magnates,  the  heroes,  of  Law. 

But  these  supermen  may  also  (and  it  is  not  surprising)  be 
leaders,  with  all  the  psychology  of  a  leader,  i.e.  the  hypnotizer, 
who  creates  nothing  himself  but  the  form,  and  simply  translates 
the  instinctive  will  of  the  multitude,  to  which  Nature  itself  gives 
direction.  There  is  no  value  in  that  theory  of  an  elite,  advanced 
out  of  ignorant  conceit,  which  asserts  that  nothing  comes  from 
below,  and  that  the  fertilizing  rain  of  ideas  falls  from  above; 
for  that  rain  itself  is  nought  but  the  vaporization  of  the  moisture 
already  drawn  from  earth.  Emerson's  phrase,  "  representative 
man  ",  is  a  correct  one ;  they  are  but  agents  obeying  orders. 

§  10.  Same :  The  Great  Jurists  in  History.  In  the  sequence 
of  the  ages,  the  series  of  famous  Jurists  —  the  general  staff,  as  it 
were  —  has  continued  almost  without  a  break ;  for  Law  has  never 
taken  a  holiday.  They  might  be  called  the  archbishops  of  Law, 
their  genius  administering  the  communion  to  the  jural  needs  of 
the  peoples.  When  the  jurist  appears  in  history  (Ihering  says). 
Law  has  passed  out  of  the  period  of  infancy  and  ingenuousness. 

It  is  usual  to  dwell  upon  some  of  them,  in  the  courses  of  ele- 
mentary law,  with  more  or  less  detail.  Beginning  with  Lycurgus 
and  Solon,  they  are  represented  as  having  performed  that  in- 
credible miracle  of  imposing  upon  the  Athenian  and  the  Spartan 
peoples,  at  one  stroke,  systems  of  law  in  contrast  with  the  native 
ones  (though  in  fact  they  probably  did  no  more  than  to  reduce 
the  existing  customs  into  a  code).     But  these  disquisitions  depart 


176  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

from  the  true  path  of  abstract  legal  science;  for  their  material 
is  part  of  the  concrete  history  of  law.  History's  task  it  is  to  tell 
us  of  these  illustrious  men  of  law,  their  personal  traits,  their 
work  and  influence.  But  in  evolution  more  importance  belongs 
to  their  ideas  than  to  their  names;  for  thought  counts  for  more 
than  erudition  does. 

These  lofty  personalities  have  sometimes  had  a  pernicious 
influence,  whenever  they  have  substituted  their  own  meta- 
physical notions  for  that  reality  of  nature  to  which  they  should 
confine  themselves  as  the  distinguished  interpreters.  Whenever 
they  have  exaggerated  these  unreal  abstractions,  they  have  lessened 
and  sometimes  expunged  the  direct  influence  of  the  people  on  the 
formation  of  Law.  Thereby  have  they  created  for  the  people  an 
indigestible  Law,  which  sooner  or  later  will  be  vomited  up  in  a 
revolutionary  nausea.  For  the  true  jurists  include,  not  only 
the  professional  lawyers,  but  the  outer  groups  that  influence  the 
reform  of  law,  especially  the  economists  and  the  statesmen,  — 
beneficent  toilers  for  purposeful  change  (not  to  be  confused  with 
the  mere  ambitious  politicians,  as  futile  and  sordid  as  a  flock  of 
crows).  The  professional  lawyers  too  often  are  but  a  group  of 
parasites  apart,  full  of  antipathy  and  even  of  disgust  for  the  pop- 
ular and  human  law.  They  have  lost  touch  with  the  general 
soul ;  and  have  undergone  a  degeneration  by  reason  of  their  pro- 
fession. They  are  narrowed  by  their  special  environment.  Some- 
times they  have  given  to  Law  its  exterior  beauty,  a  purely 
theoretic  architecture  not  corresponding  to  real  values,  adorned 
and  fa9aded  with  an  empty  technic,  a  symmetry  of  phrases. 
Lacking  the  sense  of  strict  Justice,  they  perforce  become  unjust. 
They  are  like  those  infant  prodigies  in  mathematics,  who  lose 
their  cleverness  as  soon  as  they  are  taught  the  actual  rules  of 
mathematics.  Their  products  must  be  studied,  but  not  imitated ; 
for  Law  must  be  seen  and  understood  as  it  is,  and  not  blindly 
accepted  as  they  represent  it. 

The  true  jurist  must  be  satisfied  to  remain  a  shepherd,  an 
enlightened  minister  to  the  needs  and  instincts  of  his  flock,  and 
not  aspire  to  create  chimeras. 

§  n.  Sixth  Factor  :  Jural  Atavism.  Like  every  product  of 
the  human  brain.  Law  is  subject  to  Atavism.  The  brain  origi- 
nates in  the  immeasurable  past  and  its  multiple  influences;  and 
the  habits  inured  in  it  are  the  great  conserving  element;  and 
atavism  is  the  aflSrmation  of  indestructible  yesterdays  sounding 
the  mufiled  bugle-call  of  thoughts  long  quiescent  in  the  sleep  of 


Chap.  IV.]  PRINCIPAL  FACTORS  177 

death.  Some  thinkers,  therefore,  have  regarded  atavism  as  an 
inherited  weakness,  the  expression  of  superseded  habits  and  col- 
lective falsities,  —  as  if  the  present  was  burdened  with  the  corpse- 
odor  of  the  past. 

Atavism  is  not  to  be  confused  with  the  race-influence,  already 
described.  The  latter  represents  the  essential  and  invariable  jural 
stock  possessed  by  each  irreducible  human  group ;  but  the  former 
is  no  essential  part  of  this  stock.  Atavism  is  formed,  attenuates, 
and  disappears  in  the  progress  of  time;  it  is  contingent  upon 
history.  It  is  an  alluvion,  a  deposit,  which  yields  only  under 
the  chemical  influences  of  new  facts  and  the  race-stock. 

This  deposit  is  formed  by  subjection  to  jural  habits.  Nature 
seems  to  prefer  that  changes  shall  not  be  too  rapid.  This  deposit 
of  older  institutions  becomes  an  obstacle  to  the  new  ones  which 
the  forces  of  jural  evolution  tend  to  produce.  "  Not  the  living, 
but  the  dead,"  says  Le  Bon,  "  play  the  dominant  role  today." 
''  Multa  quae  cecidere  renascuntur."  As  the  living  push  on  into 
the  future,  they  are  retarded  by  the  ball-and-chain  welded  by  the 
past.  "  The  fathers  have  eaten  sour  grapes ;  therefore,  are  the 
teeth  of  the  children  set  on  edge,"  says  the  Scripture. 

Law,  therefore,  like  Janus,  is  two-faced.  Its  evolution  thus 
loses  in  part  that  liberty  which  we  are  apt  to  attribute  to  it.  It 
may  be  compared  to  a  great  factory ;  its  machinery  is  constantly 
getting  out  of  date ;  new  machinery  must  be  continually  installed 
from  time  to  time;  and  yet  the  whole  cannot  be  replaced  at  a 
single  stroke;  so  that  at  any  one  moment  it  is  a  blend  of  super- 
annuated and  of  perfected  apparatus. 

Atavism-^as  both  its  pernicious  and  its  beneficent  features. 
It  is  pernicious  when  it  degenerates  into  an  exaggerated  con- 
servatism, —  when  it  grips  down  the  law  like  a  mortgage  in  the 
hands  of  a  hard-hearted  creditor.  It  is  beneficent  when  it  in- 
duces a  repugnance  to  over-rapid  changes  and  to  a  repudiation 
of  the  patterns  provided  by  the  past.  Hence  those  periods  of 
resistance  and  distortion  in  legal  progress. 

The  nations  of  the  Europeo-American  race  have  for  centuries 
been  subjected,  and  still  are,  to  a  general  atavism,  intense  and  in 
some  respects  irksome,  arising  from  the  inveterate  persistence 
of  Roman  law  ideas.  One  might  have  supposed  that  the  peoples 
which  settled  in  the  new  regions  of  the  Occident  would  have  cast 
aside  more  of  their  past,  and  would  have  produced  jural  forms  of 
surprising  novelty.  Far  from  it.  So  powerful  has  been  the 
atavistic  influence  that  neither  the  transit  of  an  ocean  nor  the 


178  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

novelty  of  the  environment  has  made  a  substantial  difference. 
There  is  perhaps  more  boldness  in  their  treatment  of  Law;  but, 
seen  as  a  whole,  it  bears  identical  features.  Nothing  is  more 
significant  of  the  latent  energy  of  tradition. 

The  struggle  between  atavism  and  new  law  is  adjusted  by  a 
process  of  natural  selection,  which  continually  effects  the  dis- 
appearance or  change  of  whatever  law  is  least  fit  for  the  epoch. 
This  incessant  picking  and  culling  is  a  dynamic  phenomenon  of 
elimination. 

§  12.  Seventh  Factor :  Progenism.  Not  only  do  the  beings 
of  the  past  struggle  within  us  to  effect  their  influence,  but  also 
the  beings  of  the  future,  who  will  be  completed  only  in  our  de- 
scendants. There  are  in  truth  two  opposing  forces  whose  focus 
of  concentration  is  in  the  present :  atavism  —  the  ebb-tide  of 
what  has  been  achieved  —  and  Progenism  (to  coin  a  new  word), 
the  flood-tide  that  is  rising. 

This  phenomenon  of  anticipatory  action,  this  precursor  of  the 
future,  forces  us  to  face  this  question :  To  w^hat  extent  is  every 
being  influenced  by  what  is  destined  to  happen  to  his  descendants  ? 
Is  the  production  of  Law  thus  influenced?  For  just  as  every 
being  contains  remnants  of  what  has  been,  so  also  he  surely  holds 
the  germs  of  what  is  to  be.  And  if  these  remnants  are  indeed  a 
factor  in  moulding  the  present,  why  are  not  also  these  germs? 
There  is  but  a  single  Whole  in  the  eternity  of  life.  Change  and 
motion  do  but  give  a  chimerical  aspect  of  separateness.  The 
influences  of  past  and  future  are  alike  pervasive. 

And  does  not  this  suggestion  throw  some  light  on  the  history 
of  Law?  Are  we  not  unjust  to  discredit  the  Precursors,  and  to 
refuse  to  see  in  their  dreams  anything  but  impossible  Utopias  ? 
May  we  not  profitably  listen  to  these  inner  voices  which  summon 
us  to  the  Law  that  is  to  come  ?  The  mark  of  a  great  idea  is  to  be 
denied  and  doubted  till  the  day  of  its  unanimous  acceptance.  If 
the  jurist  would  be  spared  the  remorse  of  having  lingered  too 
long  in  the  decadence  of  worn-out  ideas,  and  the  mortification 
of  having  repudiated  the  noble  consummations  marked  out  by 
destiny,  he  must  give  heed  in  due  season  to  those  influences  in 
the  formation  of  Law  which  we  have  called  Progenism. 

§  13.  Eighth  Factor:  Juridical  Technic.  To  put  into  appli- 
cation and  to  develop  logically  the  processes  of  Law  implicit  in 
its  structure  and  mechanism,  —  this  is  juridical  technic.  The 
Romans  termed  it  "  ratio  vel  regula  juris  ",  in  contrast  to  ''jus 
singulare." 


Chap.  IV.]  PRINCIPAL  FACTORS  179 

The  professional  lawyer,  imbued  with  this  technic,  is  eimmored 
by  the  charm  of  its  symmetry  and  the  correctness  of  its  logic,  — 
much  as  the  epicure  is  absorbed  in  the  taste  of  his  viands,  to  the 
neglect  of  their  nutritive  value.  The  lawyer,  therefore,  would 
preserve  it,  not  only  in  the  application  of  present  law,  but  also  in 
the  formation  of  new  law,  and  would  make  the  demands  of  equity 
subservient  to  the  rigidity  of  formalism. 

This  obstinacy  is  indeed  of  service  in  furnishing  a  guaranty 
against  unforeseen  and  extreme  consequences,  w^hich  would  throw 
out  of  gear  the  juridical  machine.  And  the  legislator  does  well, 
therefore,  to  respect  the  professional  prejudice  for  symmetry  of 
the  law,  even  at  the  occasional  cost  of  social  loss.  But  there 
should  be  no  exaggerated  homage.  The  sound  sources  of  Law 
can  be  unhealthily  distorted  by  scholastic  technic,  by  far-fetched 
dialectic,  and  by  the  subtle  expedients  of  an  extravagant  logic,  — 
products  of  the  pernicious  monomania  of  professional  lawyers 
carried  away  by  fanciful  cerebrations.  These  Jacobins  of  Law, 
these  pedantocrats,  forget  that  the  technic  of  Law  is  but  a 
means  to  an  end,  and  must  be  sacrificed  whenever  human  needs 
demand  it.  The  social  end  is  the  prime  consideration  in  the 
formation  of  Law;  and  technic,  however  fine,  must  always  be 
secondary. 

The  jurist  by  trade  can  seldom  be  brought  to  see  this.  But 
Ihering  has  shown  us  that  the  "  heuristics  "  of  Law,  viz.  the 
valuation  of  its  several  interests  according  to  the  needs  of  the 
time  and  the  spirit  of  the  time,  is  the  true  legal  system  —  not 
responding  in  base  subservience  to  the  immediate  contingencies, 
and  yet  courageously  rebelling  against  the  prejudices  of  an  anti- 
quated learning. 

Roman  law  devoted  itself  to  technic  with  a  sagacity  which  was 
remarkable,  an  art  which  was  superb,  and  a  cleverness  which 
was  astonishing.  It  had  even  its  strokes  of  genius.  Posterity 
brought  it  to  completion ;  but  its  well-founded  principles  continue 
to  form  the  main  stock  of  our  modern  law ;  and  this  eternal  part 
of  its  vast  structure  will  ever  deserve  study.  Nevertheless,  its 
hypnotism  should  not  induce  in  us  an  equal  admiration  for  those 
parts  of  its  bequest  which  have  now  only  an  archaeological  value. 
One  of  the  reasons  for  the  persistence  of  its  authority  is  its  rigo- 
rous logic ;  but  in  its  own  day  it  had  the  skill  to  suspend  or  mutilate 
its  logic  whenever  changes  in  social  needs  demanded  changes  of 
law.  By  its  fictions  and  its  "  jus  singulare",  it  avoided  the  tyran- 
nous excesses  of  an  absolute  juridical  grammar. 


180  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

We  must,  therefore,  have  a  care  against  over-rationahzing 
Law.  We  may  even  take  the  risk  of  de-rationaUzing  it.  The 
sense  of  Law  is  what  should  have  our  deepest  respect. 

§  14.  Ninth  Factor:  Density  of  Population.  The  view  that 
density  of  population  has  had  a  powerful  influence  on  social  con- 
ditions has  been  energetically  advanced  by  Kovalewsky  ("  Evolu- 
tion economique  des  peuples")-  In  the  general  balance,  no 
doubt  this  factor  must  be  reckoned.  And  it  is  not  without  in- 
fluence in  jural  evolution,  both  in  the  large  and  in  detail. 

Among  certain  peoples,  where  scarcity  of  subsistence  has  been 
of  great  consequence,  it  is  noticeable  that  the  killing  of  aged  and 
useless  relatives  has  not  only  been  left  unpunished,  but  has  been 
sanctioned  as  a  pious  duty.  Polyandry  and  polygamy  have  been 
recognized  where  there  was  a  disproportion  between  the  sexes. 
So.  too,  in  a  different  aspect,  density  of  population  has  affected 
legal  principles  concerned  with  vicinal  life-,  —  such  as  partition  of 
estates  and  servitudes.  In  regions  numerously  populated,  there 
is  more  solidarity  and  fraternity;  unless  the  human  pressure 
becomes  so  intense  that  a  pitiless  egoism  predominates,  as  in  the 
ancient  Chinese  custom  of  the  abandonment  of  infants,  and  in 
the  abortions  of  our  own  day.  Conversely,  the  rare  or  sterile  mar- 
riages of  a  decadent  period  have  led  to  legislation  aiming  to  increase 
the  population. 

These  apparently  contradictory  phenomena  of  the  law  have 
their  origin  in  problems  of  population,  the  ultimate  solution  of 
which  must  be  sought  by  sociology. 

§  15.  Tenth  Factor:  Solidary  Action  of  Great  Social  Forces 
and  the  Several  Parts  of  Law.  In  that  intellectual  evolution 
from  which  Law  emerges,  as  in  social  evolution  at  large,  every- 
thing proceeds  in  obedience  to  the  movements  of  the  whole.  The 
cogs  of  the  machine  exhibit  a  solidarity  of  motion.  All  is  cause 
and  effect,  and  each  part  is  united  directly  or  indirectly  to  all 
other  parts. 

We  may  therefore  say  that  a  society  exhibits  a  healthy  Law 
only  when  all  the  great  social  forces  unfold  normally.  The  evo- 
lution of  Law,  being  a  part  of  universal  history,  depends  to  a  cer- 
tain extent  on  the  evolution  of  aesthetics,  morals,  religion,  arms, 
language,  industry,  commerce,  politics.  It  would  be  a  serious 
error,  for  example,  to  suppose  that  a  retarded  civilization  in  Art 
could  have  no  ill  effect  upon  Law ;  for  the  Law  could  not  then  have 
as  perfect  a  condition  as  if  Art  had  flourished.  So,  too,  a  people's 
Law,  however  perfect,  would  become  sterile  if  Morality  degener- 


Chap.  IV.]  PRINCIPAL   FACTORS  181 

ated ;  for,  in  spite  of  its  mechanical  perfection,  it  could  not  func- 
tion effectively  if  it  were  at  the  service  of  rascals  for  the  realization 
of  dishonesty,  greed,  ruthlessness,  and  injustice.  Some  have 
even  maintained  that  the  very  technical  perfection  of  a  people's 
Law  may  be  a  sign  of  social  decadence,  and  the  example  of  Rome 
in  the  later  Empire  is  pointed  to ;  though  this  may  be  explained 
as  coincidence  and  not  as  causality.  In  the  words  of  a  former 
student  of  mine,  writing  in  approval  of  these  views  uttered  in  a 
lecture  :  ''To  suppose  that  the  Moral  System,  individual  or  social, 
can  advance  while  Law  remains  immovable,  is  to  dream  of  the 
impossible.  Two  parallel  lines  cannot  diverge.  When  we  are 
all  ready  to  acknowledge  this,  we  shall  have  done  with  shuffling 
timidity  in  the  legal  profession,  with  shortsightedness  in  legis- 
lators, and  with  expediency  in  morals.  We  are  still  far  from  that 
goal ;  but  the  gospel  of  its  high  aim  should  inspire  us  to  spread 
the  doctrine."  The  Law  of  every  people  has  a  constant  tendency 
to  evolve  as  a  whole, — in  solidarity,  synchronism,  and  synarchy. 

Tarde's  term  for  this  spontaneous  feature  is  "  social  logic." 
In  its  external  phases  Law  is  impregnated  at  every  stage  with  the 
national  mind,  formed  and  influenced  by  environment,  by  tradi- 
tions, and  by  events.  In  a  given  epoch  and  country,  all  men 
make  their  laws,  as  they  make  their  clothes,  in  a  common  style. 
The  peaceful  revolutions  of  Law  are  as  universal,  as  instinctive,, 
and  as  mysterious  in  their  hidden  causes  as  are  the  changes  of 
habit  in  dress,  or  those  of  taste  in  the  vogue  of  tobacco  or  alcohol. 
This  truth  applies  also  (subject  to  variations)  to  all  the  members 
of  the  same  race  (either  natural  or  historic),  even  when  they  have 
been  conglomerated  in  distinct  groups.  And  this  unconscious 
consensus  <lemonstrates  the  activity  of  forces  independent  of  con- 
scious liberty  of  will. 

There  is  indeed  an  organic  law  of  correlation,  —  of  a  harmonious 
tension  of  jural  forces.  The  whole  generates  the  particulars. 
Between  the  various  parts  are  felt  the  mutual  reactions,  —  a 
universal  resonance,  like  that  of  a  tremendous  network  of  invisible 
telegraph-wires  transmitting  in  every  direction  the  most  subtle 
impulses. 

And  here  we  meet  again  the  analogy  of  Language,  of  Religion, 
of  Morals,  of  Industry.  We  are  in  the  presence  of  nothing  less 
than  a  dynamic  unity  of  Law, 


Chapter  V 


CAUSES  FOR  THE  VARIATION  OF  JURAL  PHENOMENA 

IN  GENERAL! 


§  1.   The  Quest  for  the   Causes  of 

Law. 
§  2.  Political  Facts  as  a  Cause  of 

Law. 
§  3.  Economic  Facts  as  a  Cause  of 

Law. 
§  4.  Moral    Facts    as  a  Cause    of 

Law. 


§  5.  Religious  Facts  as  a  Cause  of 

Law. 
§  6.   Economic  Causes  of  Law. 

§  7.   Causes  of  Law  in  General. 

§  8.  Partial  Causes  of  Law.  / 


§  1.  The  Quest  for  the  Causes  of  Law.  We  now  proceed  to 
the  task  of  seeking  for  the  general  causes,  valid  for  all  social  types, 
that  govern  the  variations  exhibited  by  Law  in  its  evolution. 
We  may  assume,  with  much  probability,  that  the  causes  for  the 
first  and  most  important  variations  in  law  will  be  found  to  reside 
in  those  facts  which  themselves  give  rise  to  jural  phenomena. 
For  in  general  the  facts  which  determine  the  production  of  a 
phenomenon  are  also  those  whose  variations  necessarily  deter- 
mine the  variations  of  the  phenomenon  produced.  We  have 
already  pointed  out  that,  to  give  rise  to  law,  the  presence  of  two 
sorts  of  social  activity  suffices,  viz.  economic  pursuits,  and  the 
family  \  and  we  are  now  therefore  to  inquire  whether  a  variation 
in  these  activities  determines  a  variation  in  the  jural  facts, 
what  is  the  content  of  such  variations,  and  what  is  the  general 
relation  between  the  one  and  the  other.  In  the  course  of  social 
evolution,  new  activities  arise  —  morals,  the  State,  religion,  art, 
science ;  and  we  cannot  exclude  a  priori  the  possibility  that  these 
activities,  once  arisen,  may  react  on  the  law,  producing  new 
variations. 

1  [By  Carlo  Nardi-Greco. 

This  passage  represents  pp.  310-324,  Chap.  VIII,  of  the  author's 
"Sociologia  giuridica"  (Turin,  1907,  Fratelli  Bocca). 

The  author  is  a  disciple  of  Asturaro,  the  eminent  sociologist,  professor 
in  the  University  of  Genoa ;  and  was  but  23  years  of  age  at  the  time  of 
the  publication  of  his  work,  which  reveals  extraordinary  research  as  well 
as  rigid  method  and  scientific  care. 

The  translation  is  by  John  H.  Wigmore,  co-editor  of  this  series.] 

182 


Chap.  V.]  VARIATION  OF  JURAL  PHENOMENA  183 

This  inquiry,  indeed,  has  already  attracted  the  attention  of 
legal  philosophers  and  of  sociologists,  and  with  diverse  results. 
Some  have  stopped  at  pointing  out  generally  that  the  cause  of 
the  variations  of  law  lies  in  the  will  of  the  State  or  the  sovereign ; 
or  in  a  specific  intuition  innate  in  man ;  or  in  reason ;  or  in  the 
sense  of  justice ;  or  in  the  collective  conscience  of  a  people.  But 
science  cannot  be  content  with  these  solutions. 

Another  group  of  scholars  has  attributed  the  cause  of  the 
variations  of  jural  phenomena  to  particular  groups  of  social  facts. 
And  it  is  true  that  the  social  facts  of  the  diverse  societies  must 
furnish  the  causes  of  the  variations  of  jural  phenomena  exhibited 
in  each  one  of  them.  The  primitive  reactions  of  collective  life, 
the  simplest  legal  inhibitions  in  the  horde,  the  varied  sanctions 
observable  in  the  clan,  the  associated  clans,  the  village  communi- 
ties, the  cities,  the  organized  lordships,  and  the  State,  are  aimed 
at  protecting  the  specific  structures  and  functions  in  their  eco- 
nomic aspects,  their  family  aspects,  their  military  and  political  as- 
pects, and  so  on.  These  arise  under  pressure  of  the  need  to  defend 
and  protect  the  respective  advantages  and  activities  appropriate 
to  these  functions.  Hence  the  conclusion  that  in  the  other  and 
concomitant  social  facts  are  to  be  sought  the  causes  of  the  varia- 
tions of  the  jural  facts. 

Some  of  those  scholars,  especially  the  sociologists,  have  not 
stopped  with  asserting  generally  the  causative  relation  of  social 
facts,  but  have  proceeded  to  specify  one  or  another  specific  group 
of  social  facts  as  the  sole  and  primary  cause  of  jural  variations; 
in  particular,  political  or  economic  or  religious  or  moral  facts. 

§  2.  Political  Facts  as  a  Cause  of  Law.  The  first  of  these 
theories  attributes  the  causes  of  law  to  political  facts. 

It  has  been  asserted  that  political  phenomena,  and  par- 
ticularly the  formation  of  the  State,  are  the  general  cause 
of  law,  and  therefore  that  variations  in  the  will  of  the  State 
are  the  cause  of  variations  in  law.  As  to  this,  suffice  it 
here  to  refer  to  the  demonstration  that  jural  facts  are  found 
in  human  society  even  prior  to  the  existence  of  any  political 
institution,  and  that  hence  the  earliest  variations  of  jural 
phenomena  cannot  be  explained  by  variations  of  political 
facts.  IMoreover,  even  when  a  political  structure  comes  into 
existence,  an  important  part  of  law  continues  to  form  and  develop 
itself  outside  of  any  State  influences,  in  the  form  of  practice  and 
customary  law.  Furthermore,  the  political  State  formulates  its 
law  by  legislation,  and  the  question  still  remains  to  be  explained 


184  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

why  the  State  thus  formulates  a  rule  of  one  content  rather  than 
another,  and  imposes  the  duty  of  one  sort  of  conduct  and  not  of 
another.  This  inquiry  takes  us  back  to  the  motives  and  reasons 
for  the  State's  recognition  of  specific  rules  of  conduct.  All  the 
labors  which  precede  the  formation  of  legislative  law  show  that 
this  determination  of  the  State's  will  takes  place  under  the  causal 
influence  of  specific  social  demands.  It  is  therefore  in  these  latter 
that  we  must  seek  for  the  prime  and  general  cause  of  the  rules 
themselves. 

§  3.  Economic  Facts  as  a  Cause  of  Law.  A  second  theory 
asserts  that  economic  facts  —  and,  particularly,  facts  of  economic 
relations — form  the  sole  cause  of  the  variations  in  jural  facts.  That 
this  theory  contains  a  very  large  part  of  the  truth,  and  that  not 
only  economic  relations,  but  also  the  facts  of  production  and  ex- 
change, exercise  a  profound  causal  influence  on  the  variations  of 
law,  is  the  view  of  the  present  author,  for  which  this  treatise  will 
supply  the  proof.  The  facts  reveal  indubitably  that  historic 
materialism  furnishes  the  most  correct  explanation  yet  advanced 
of  the  variations  of  law.  But  it  shares  with  the  other  theories 
the  serious  defect  of  unilateralness,  i.e.  it  is  open  to  the  reproach 
of  accepting  too  narrow  a  point  of  view  for  its  judgment  of  jural 
phenomena. 

In  the  first  place,  the  adherents  of  historic  materialism  have 
taken  into  account  only  a  single  type  of  social  organization,  viz. 
capitalistic  society;  and  yet  prior  to  and  outside  of  that  type 
of  society  were  and  are  still  found  innumerable  and  varied  societies 
of  an  egalitarian  and  communistic  type. 

In  the  second  place,  the  theory  has  not  taken  any  account  of 
the  social  facts,  other  than  economic,  in  their  possibility  of  direct 
and  dominant  influence  on  the  formation  of  law.  There  exist 
rules  of  law  which  are  not  completely  explainable  without  giving 
effect  to  the  variations  in  the  facts  of  family  life,  —  for  example, 
the  principle  (in  some  primitive  communities)  excluding  from 
punishment  the  perpetrator  of  the  homicide  of  a  parent,  the  prin- 
ciple that  subjects  to  the  duty  of  blood-feud  those  persons  only 
who  are  related  on  the  paternal  side  and  excludes  those  related 
on  the  maternal  side  and  vice  versa.  Nor  is  the  answer  a  sound 
one  that  the  facts  of  family  life  are  themselves  explainable  by 
economic  facts ;  for  (as  Asturaro  has  observed  ^)  even  were  it 
demonstrated    that    a    perfect    correspondence    existed    between 

^  Asturaro,  "Sociologia,  i  suoi  metodi",  etc.;  "II  materialismo  statico 
e  la  sociologia  generale." 


Chap.  V.]  VARIATION   OF   JURAL   PHENOMENA  185 

economic  and  family  or  gentile  facts,  thus  overshadowing  any 
influence  for  the  needs  and  sentiments  of  family  life,  it  must  still 
remain  necessary,  in  explaining  jural  facts,  to  accord  some  in- 
fluence to  the  intermediate  element,  i.e.  the  family  institutions 
themselves.  Nor  has  historical  materialism  taken  into  account  the 
jural  principles  that  concern  the  higher  social  institutions — politi- 
cal, military,  religious,  artistic,  and  scientific  —  principles  which 
are  not  completely  explainable  without  considering  the  influence  ex- 
ercised by  the  more  complex  phenomena  in  the  various  social  types. 

The  adherents  of  historical  materialism,  therefore,  in  limiting 
themselves  to  economic  facts  as  the  fundamental  cause  of  law, 
have  not  sufficiently  inquired  into  the  possible  causal  relations  of 
the  higher  varieties  of  social  facts.  And,  finally,  they  are  open  to 
the  criticism  of  not  having  given  proper  place  to  the  sentiments 
and  psychic  activities  which  are  attributable  to  the  collective 
struggles,  to  inter-individual  inhibitions,  to  sympathy  and  the 
social  sentiment;  for  these  two  exercise  a  most  potent  influence 
on  the  formation  of  law. 

§  4.  Moral  Facts  as  a  Cause  of  Law.  That  morals  are  uni- 
versally at  the  base  of  law,  and  that  the  variations  of  moral  facts 
are  the  causes  of  variation  in  jural  facts,  has  been  by  some  scholars 
affirmed  and  by  others  denied.  But  the  former  opinion  must  be 
deemed  unsound  if  we  are  to  follow  the  deductions  to  be  gained 
from  the  most  general  laws  of  psychology  and  of  zoologic  sociology. 

To  determine  whether  Law  in  the  field  of  historic  reality  (and 
we  are  of  course  dealing  only  with  actual,  not  with  ideal  law  and 
morality),  varies  in  relation  to  morals,  or  the  contrary,  we  must 
restrict  ourselves  to  the  known  principles  that  govern  psychic  and 
psycho-social  facts.  Are  moral  facts,  then,  the  general  and  funda- 
mental cause  of  law  ? 

We  have  already  seen  that,  to  produce  a  minimum  of  jural 
facts,  it  is  not  necessary  that  moral  facts  should  preexist,  —  much 
less  that  they  should  act  causally.  The  collective  reactions  take 
place  under  the  stimulus  of  the  sentiments  of  pain,  anger,  fear, 
retaliation,  revenge,  sympathy,  and  they  become  constant  through 
experience  of  the  utility  of  their  repetition ;  and  this  is  independent 
of  any  moral  consideration.  In  the  beginning,  the  man  who 
does  an  act  hurtful  to  the  group  is  killed  or  beaten,  in  response 
to  an  impulse  of  anger,  fear,  or  the  like.  Then  the  penalty  con- 
tinues to  be  applied  to  those  who  do  like  acts,  simply  because 
such  had  been  the  former  practice,  the  custom  of  ancestors,  and 
because  experience  had  shown  the  utility  of  the  regular  use  of  such 


186  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

penalties ;  and  the  memory  of  such  experiences  remained  uncon- 
sciously embedded  in  the  depths  of  each  individual  consciousness. 
Anti-social  acts  are  thus  punished,  in  primitive  times,  because 
they  injure  a  collective  interest  and  violate  the  rules  which  pro- 
tect those  general  interests,  —  not  because  they  are  disapproved 
by  the  moral  conscience. 

It  is  true  that  the  sympathetic  function  does  concur  to  affect 
the  formation  of  law.  But,  in  the  first  place,  the  sympathetic 
function  is  not  of  itself  a  moral  activity ;  it  is  merely  one  of  the 
most  important  factors  in  morality.  And,  in  the  second  place 
(as  the  whole  course  of  legal  evolution  shows),  the  action  of  the 
sympathetic  functions  on  law  is  always  secondary  and  subor- 
dinate to  that  of  our  self-interest,  i.e.  our  egoistic  motives.  For 
example,  the  law  which  guarantees  the  master's  power  over  the 
slave  is  in  opposition  to  the  sympathy  which  man  feels  for  man 
and  is  in  harmony  with  the  egoistic  interest  of  mastership.  If 
therefore  the  sympathetic  function  is  not  a  causative  factor  for 
law,  much  less  can  such  a  causal  relation  be  attributed  to  morality, 
which  is  a  product  of  sympathy  together  with  other  factors. 
Ownership  of  slaves,  thus,  not  only  is  not  a  product  of  the  sym- 
pathetic function,  but  it  is  in  direct  opposition  to  the  moral 
quality  of  benevolence. 

Let  us  take  another  example.  During  a  long  stage  in  the  evolu- 
tion of  law,  and  throughout  a  large  number  of  human  societies, 
the  offender  is  visited  with  a  penalty  regardless  of  any  valuation 
of  the  motives  that  led  to  his  act.  The  penalty  is  inflicted  in- 
discriminately on  every  doer  of  the  act,  —  on  the  mentally  de- 
ranged, on  the  intoxicated,  on  the  person  acting  ignorantly  or 
involuntarily,  or  in  self-defence,  and  even  on  a  person  connected 
merely  by  relationship  or  vicinage  with  the  actual  doer.  Some- 
times animals  and  lifeless  objects  were  subjected  to  penal  treat- 
ment ;  for  they  too  excited  the  same  sentiments  which  led  to  these 
primitive  reactions,  —  reactions  which  afterwards  became  legal 
rules.  Obviously,  then,  moral  valuations  were  alien  to  these 
penal  practices;  and  moral  motives  were  completely  wanting 
in  either  the  formulation  or  the  application  of  the  rule. 

That  Law  is  always  and  everywhere  founded  on  morals  must 
therefore  be  denied;  and  hence  it  is  impossible  to  explain  all 
the  variations  of  law  by  the  variations  of  morals. 

But  the  case  is  even  stronger.  Our  examination  of  jural  de- 
velopment in  the  prior  chapters  of  this  work  ^  has  demonstrated 
1  [The  author's  original  work.] 


Chap.  V.]  VARIATION   OF  JURAL   PHENOMENA  187 

that  morality  has  not  once  produced  any  of  those  great  changes 
which  mark  like  milestones  the  highroad  of  law's  evolution. 
The  formation  of  primitive  social  unity;  the  formation  and  the 
dissolution  of  tribal  and  territorial  groups;  the  substitution  of 
individual  for  collective  ownership;  the  growth  of  relations  of 
mastery  between  classes  and  individuals  in  place  of  equality  and 
cooperation;  the  substitution  of  serfdom  for  slavery,  and  of 
wage-employment  for  serfdom  or  slavery ;  all  these  great  changes 
have  come  about  through  the  conflict  and  adjustment  of  interests, 
and  through  the  victory  and  dominance  of  certain  classes,  who  have 
then  formulated  and  applied  the  law  by  the  employment  of  social 
force.  Morality  may  have  accelerated  and  intensified  certain 
of  these  processes  —  for  example,  the  process  of  dissipating  servile 
ownership  under  the  stimulus  of  the  interests  involved  in  produc- 
tion. But  it  has  never  created  or  initiated  the  movement. 
]\Ioreover  —  and  this  is  the  proof  of  our  thesis  —  when  one 
jural  system  has  replaced  another,  a  new  morality  has  arisen, 
which  serves  as  the  ideal  support  and  complement  of  the  new 
legal  institutions.  It  was  thus  that  the  egalitarian  morality  of 
the  collectivist  era  was  replaced  by  the  morality  of  the  servile 
period,  when  the  new  economic  order  and  its  appurtenant  law ' 
had  succeeded  to  the  primitive  system  of  production. 

Hence,  the  mode  of  formation  of  the  moral  consciousness  (the 
basis  of  the  moral  personality)  shows  that  to  hold  morals  to  be 
the  first  general  cause  of  law  is  untenable.  For  the  formation 
of  the  primitive  moral  consciousness  the  mere  conception  of 
punishment  sufiices,  regardless  of  any  internal  approval  or  dis- 
approval of  the  conduct.  After  long  exercise,  the  inhibition 
produced  by  fear  of  the  penalty  finally  generates  in  the  agent  a 
personal  conviction  as  to  either  obeying  or  disobeying  the  precept 
contained  in  the  rule,  whether  or  not  it  is  a  thing  approvable  or 
disapprovable  in  itself,  independently  of  the  fear  of  the  penalty. 
In  this  aspect,  it  is  the  law  that  is  one  of  the  causes  of  the  growth 
of  a  moral  consciousness  (and  not  vice  versa).  It  is  inconceivable 
that  the  inhibition  produced  by  the  conception  of  purely  in- 
trinsic consequences  of  conduct  could  be  more  efficacious,  more 
fundamental,  or  more  simple,  than  the  inhibition  produced  by  the 
external  consequence,  viz.  the  penalty.  Hence,  among  the 
numerous  causes  of  permanent  moral  inhibition  must  be  reckoned 
the  repetition  of  jural  experiences  and  the  prolonged  exercise  of 
jural  inhibition.  The  same  is  true  of  positive  personal  morality, 
i.e.  benevolence.     In  fact,  law  is  one  of  the  conditions  making  pos- 


188  FACTORS    OF   LEGAL   EVOLUTION  [Part  II. 

sible  the  active  exercise  of  positive  personal  morality;  for  the 
latter  presupposes  moral  inhibition  and  therefore  jural  inhibition ; 
one  who  is  not  capable  of  abstaining  from  injury  to  his  fellow- 
beings  cannot  habitually  do  good  to  them. 

To  sum  up :  It  is  impossible  to  accept  the  theory  that  morals 
are  a  prime  and  general  cause  of  law,  and  that  the  variations  of 
the  one  explain  the  variations  of  the  other,  because :  (a)  Morals 
are  not  one  of  the  causes  sufficient  and  necessary  to  give  rise  to 
law ;  (6)  the  operation  of  the  simpler  elements  of  positive  morality, 
viz.  sympathy  and  altruism,  is  secondary,  in  jural  development, 
to  that  of  general  social  utility,  and  social  utility  as  a  conscious 
motive  in  the  formulation  of  rules  is  in  its  turn  secondary  and 
subordinate  to  the  egoistic  motives  of  those  who  wield  the  social 
forces;  (c)  the  more  important  variations  of  law  are  not  caused 
by  variations  of  morals,  but  vice  versa;  (d)  law  is  one  of  the  pre- 
existing conditions  for  the  formation  and  development  of  personal 
moral  consciousness;   (e)  law  is  one  of  the  ends  of  morality. 

§  5.  Religious  Facts  as  a  Cause  of  Law.  Nor  can  Religion 
be  deemed  the  general  cause  for  jural  variations.  The  earliest 
rules  of  law  are  bereft  of  any  religious  element.  Primitive  socie- 
ties punish  certain  acts  because  those  acts  threaten  collective 
harm  and  excite  in  the  whole  social  group  the  sentiments  of  anger, 
revenge,  or  disapproval.  The  simplest  forms  of  legal  sanctions 
cannot  be  explained  by  variations  in  religious  facts.  Hence, 
religion  cannot  be  the  general  cause  of  variations  of  law  or  right. 

In  the  study  of  jural  evolution,  we  do  indeed  find  an  early  con- 
nection between  religion  and  law  in  the  Polynesian  groups  and  in 
African  villages,  where  the  sorcerer  is  resorted  to  because  his 
magic  will  discover  the  unknown  doer  of  a  crime.  Here  a  relation 
of  cause  and  effect  is.  evident  between  law  and  religion.  But  it  is 
religion  that  serves  a  jural  purpose,  and  not  vice  versa. 

And  in  a  much  later  and  more  complex  stage  of  jural  evolution 
it  may  happen  (but  this  cannot  be  asserted  generally)  that  the 
sanctions  of  religion  are  added  to  those  of  law,  and  that  the  rule 
of  law  is  looked  upon  as  willed  by  the  deities.  But,  in  the  first 
place,  this  fact  is  not  found  in  all  human  societies,  hence  does  not 
prove  a  general  causal  influence  of  religion  upon  law.  And,  further- 
more, in  no  case  has  a  religious  change  produced  a  fundamental 
jural  change.  The  religion  finds  the  legal  system  already  formed 
and  sanctions  it,  promising  the  favor  of  the  gods  to  him  who  ob- 
serves the  rules  of  law  and  supernatural  penalties  to  him  who 
violates  them.     Law  thus  remains  the  basis  on  which  religion  acts. 


Chap.  V.]  VARIATION    OF   JURAL   PHENOMENA  189 

Still  another  connection  is  found  when  the  priests  become  the 
depositaries  of  tradition  for  ancestral  law  and  are  chosen  as  its  ar- 
biters. But  this  alone  produces  no  change  in  the  existing  legal 
system.  The  attribution  of  the  task  of  arbiter  to  the  priests  is 
entirely  explainable  without  requiring  resort  to  a  theory  that 
law  is  originally  founded  on  religion.  The  most  notable  instance 
of  this  double  function  is  that  of  the  Roman  "  pontlfices."  But 
those  personages  never  exercised  genuinely  juridical  functions. 
They  merely  happened  to  acquire  a  thorough  knowledge  of  the 
ancient  tribal  law  of  Rome,  because  it  was  useful  to  them  in 
the  discharge  of  their  regular  functions.  For  example,  among  the 
patricians,  the  participation  of  the  priests  was  necessary  for  the 
execution  of  a  will  "  calatis  comitiis",  for  the  "  detestatio  sacro- 
rum",  for  the  ceremony  of  marriage  by  ''  confarreatio",  and  for 
its  dissolution  by  "  diffarreatio."  The  priests  knew  and  arranged 
the  calendar,  hence  they  must  be  consulted  to  learn  whether  a 
certain  day  was  "  fastus  "  or  "  nefastus  '^ ;  the  priests  knew 
whether  a  thing  had  become  "  sacer  "  or  tabooed  by  religion ; 
they  were  fully  acquainted  with  the  notions  about  transmission 
of  the  family  "  sacra",  hence  their  knowledge  affected  the  law  of 
succession  to  property.  The  priests  therefore  had  a  greater  neces- 
sity to  know  the  law  than  perhaps  any  other  persons  having 
public  functions.  "  Ponteficem  bonum  neminem  esse  nisi  qui 
jus  civile  cognosset  "  was  the  view  of  Mucins  Scaevola  at  an  even 
later  period.^  Hence,  only  those  who  were  deeply  skilled  in  the 
law  were  promoted  to  the  college  of  priests.  Their  deliberations 
had  a  great  authority  because  they  were  universally  regarded 
as  best  acquainted  with  the  ancestral  law.  Moreover,  the 
priests  preserved  records  of  their  resolutions,  in  the  "  com- 
mentarii  ponteficium",  which  in  later  times  continued  to  be  the 
most  authentic  and  authoritative  source  of  Roman  patrician 
law  2 ;  availing  themselves  of  this  authority  and  reputation,  the 
priests  kept  these  records  to  themselves  up  to  the  5th  century, 
when  they  were  published  by  Gnaeus  Flavins  and  Appius  Claudius 
Caecus ;    thus  it  had  become  customary  to  refer  disputes  to  the 

1  Cicero,  "De  legibus",  II,  19,  17. 

^  Kruger,  "Histoire  des  sources  du  droit  romain",  French  tr.,  Paris, 
1894.  Others  however  have  maintained  that  the  priests  had  genuine 
judicial  functions:  Puchta,  "Institutionen",  §§  410  el  seq.;  Ihering, 
"Geist  des  romischen  Rechts",  I,  §  18;  Karlowa,  "Romisches  Zivilpro- 
zess",  pp.  23  et  seq.;  id.,  "Rechtsgeschichte",  I,  274;  Bechmann,  in 
"Sitzungsberichte  der  Miinchner  Akademie",  1890,  II,  2,  pp.  179  et  seq. 
But  this  latter  view  would  not  be  inconsistent  with  oiu:  general  conclusion, 
viz.  that  the  religious  system  serves  a  juridical  purpose  and  is  thus  in  the 
relation  of  effect  to  cause. 


190  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

decision  of  those  who  alone  knew  this  law,  viz.  the  priests,  who 
became  permanent  arbiters.  The  existence  of  an  arbitral  func- 
tion in  the  Roman  priests  is  therefore  perfectly  explainable  with- 
out recourse  to  the  theory  that  law  is  an  effect  of  religion. 

So,  too  (as  Maine  has  shown),  the  themists  of  ancient  Greece, 
reputed  to  be  inspired  by  the  deity,  were  in  fact  judges  appointed 
by  the  priests,  to  whom  the  controversies  were  submitted  by 
ancient  custom.  In  many  other  societies  the  practice  was  formed 
of  resorting  for  decisions  to  such  persons  as  were  older,  or  wiser, 
or  more  skilled,  and  knew  by  heart  the  ancient  customs  and  judg- 
ments and  opinions  of  the  sages.  For  example,  among  the  shep- 
herds of  Khorassan,  the  Hamitic  peoples  of  Africa,  the  Arabian 
tribes,  the  contemporary  peoples  of  the  Caucasus,  the  ancient 
Germans  of  the  North,  there  were  classes  of  persons,  quite  dis- 
tinct from  the  priests,  who  were  always  chosen  to  judge  disputes 
of  law  because  they  were  versed  in  the  ancient  law. 

One  more  reaction  of  religion  upon  law,  as  formed  in  some  socie- 
ties, remains  to  be  noted.  The  law  sometimes  champions  a  cer- 
tain form  of  religion,  or  imposes  specific  creeds,  or  prescribes 
certain  religious  practices.  But  this  reaction  of  law  upon  religion 
is  produced  by  the  necessity  of  protecting  the  politico-economic 
constitution.  A  bulwark  against  the  revolt  of  subject  masses  is 
furnished  by  the  ascendancy  of  the  priests  through  the  credulity 
of  the  people.  In  any  event,  this  phenomenon  is  only  partial, 
not  general,  and  therefore  cannot  serve  to  support  a  theory  valid 
for  all  societies,  —  the  theory  that  religion  is  the  cause,  or  one  of 
the  general  causes,  of  law. 

§  6.  Economic  Causes  of  Law.^  Even  the  most  superficial 
observation  shows  how  large  a  number  of  the  rules  of  law  are 
directed  to  protecting  the  economic  system  of  a  people.  At  the 
very  dawn  of  jural  evolution,  in  the  stage  of  hunting  and  fishing, 
there  is  a  repression  of  acts  infringing  those  ancestral  customs 
whose  rigorous  observance  can  alone  assure  the  success  of  expedi- 
tions with  weapon  and  net;  the  individual  who  appropriates 
the  sustenance  which  should  go  to  the  entire  group  is  punished, 
and  also  the  one  who  does  not  contribute  to  the  group  the  pro- 
ceeds of  his  labors.  In  the  law  of  tribal  societies,  numerous  rules 
deal  with  the  division  and  the  transfer  of  the  tribal  property, 
the  relations  between  its  manager  and  the  blood-related  collabora- 
tors, the  relations  between  the  members  of  a  domestic  community 
and  its  property  in  relation  to  the  respective  contributions  due 
1  [This  section  is  §  108,  pp.  329-333,  of  the  author's  text.  —  Ed.] 


Chap.  V.]  VARIATION   OF   JURAL   PHENOMENA  191 

from  them  and  the  rules  for  their  respective  enjoyment  thereof. 
Legal  sanctions  favor  the  form  of  production  most  important  for 
each  group;  e.g.  where  pasturage  is  the  principal  form,  agri- 
culture is  obstructed,  and  where  agriculture  is  the  principal  form, 
pasturage  is  prohibited.  Rules  of  law  guarantee  the  elemental 
relations  of  the  exchanges  effected  between  different  tribes  eco- 
nomically differentiated.  In  agricultural  communities  almost 
the  entire  jural  activity  is  devoted  to  regulating  the  periodical 
allotment  of  the  soil,  to  guarding  collective  property  against  in- 
dividual usurpation,  to  regularizing  the  individual  family  ownership 
of  the  home  and  the  surrounding  plot  of  ground.  When  collective 
and  tribal  ownership  has  passed  away,  the  chief  function  of  the  law 
is  to  secure  the  power  of  the  overlord  over  his  serfs  and  slaves,  and 
to  assure  their  rendering  of  services  and  other  dues.  Finally,  when 
the  relations  between  the  producers,  who  have  differentiated  and 
become  interdependent,  have  become  infinite  in  variety,  and  the 
State  has  arisen,  the  law  extends  its  field  of  guaranty  over  the 
whole  vast  field  of  relations  of  ownership  and  exchange. 

Thus,  the  greater  number  of  jural  rules  have  an  economic  content. 

Corresponding  therefore  to  the  three  grand  economic  divisions 
of  production,  economic  relations  between  producers,  and  ex- 
change, these  rules  of  law  may  be  divided  into  three  groups.  Pro- 
duction may  be  subdivided,  according  to  the  different  natural 
forces  utilized  (land,  animals,  bio-chemical  properties  of  animals 
and  plants,  minerals,  physico-chemical  and  mechanical  forces), 
and  according  to  the  several  instruments  employed  (club,  bow, 
sword,  tool,  machine,  money-capital,  etc.),  into  hunting,  fishing, 
spade-agriculture,  pasturage,  animal-agriculture,  artisan  indus- 
try, mechanical  industry,  large-scale  agriculture,  pastoral  industry, 
and  so  on.  Economic  relation  of  producers  may  be  that  of  associa- 
tion between  producers  (communism,  collectivism,  simple  col- 
laboration) or  that  of  association  between  the  possessors  of  the 
means  of  production  and  those  who  collaborate  only  with  their 
toil  (simple  mixed  association,  slavery,  serfdom,  wage-system). 
Exchange  between  the  different  producers  forms  the  third  group 
of  phenomena.  Hence  we  have  correspondingly  three  classes 
of  legal  rules,  respectively  affecting  (a)  the  form  of  production, 
(6)  the  relations  between  producers,  (c)  the  relations  of  exchange. 

As  we  shall  now  see,  the  rules  of  economic  law  present  varia- 
tions concomitant  with  the  variations  exhibited  by  the  economic 
facts  of  the  several  classes.  Thus  for  these  two  series  of  facts 
the  variations  correspond  term  for  term,  and  their  causal  relation 


192  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

may  therefore,  from  a  scientific  point  of  view,  be  explained  in  one 
of  three  ways:  (1)  Either  the  variations  of  the  economic  facts 
are  the  cause  of  the  variations  of  the  jural  facts ;  ^  (2)  Or,  the 
variations  of  the  jural  facts  are  the  cause  of  the  variations  of 
the  economic  facts ;  ^  (3)  Or,  there  is  no  causal  relation  between 
the  two  series  of  facts.^ 

It  is  here  necessary  to  keep  in  mind  the  causal  relations  exist- 
ing between  the  several  classes  of  economic  facts.  In  Marx'  view, 
the  most  fundamental  fact  is  the  instrument  of  labor.  De  Greef, 
Schmoller,  and  Hildebrand  make  it  the  circulation  of  wealth.^ 
Loria  and  Asturaro  have  demonstrated  that  it  is  production  which 
determines  the  form  of  the  economic  relation;  both  exerting  a 
causal  influence  on  the  fact  of  exchange.  The  place  of  the  instru- 
ment of  labor  is  much  disputed;  for  while  Marx  regards  it  as 
decisive,  Loria  maintains  the  contrary,  holding  that  the  economic 
relation  exercises  a  causal  influence  on  the  instrument.  Asturaro, 
however,  believes  that  the  instrument  of  labor  depends  directly  on 
production,  and  that  between  the  instrument  and  the  economic  re- 
lation there  is  no  causal  action,  but  merely  reciprocal  influence,  thus : 
Exchange 

I 

Economic  relation 

Instrument 
of  Labor 

Production 

Laboring  population  and  territory 

1  This  is  the  view  maintained  by  Marx,  Engels,  De  Greef,  Loria, 
Labriola,  Asturaro ;  tendencies  thereto  are  found  in  Vico,  Montesquieu, 
Vidari,  De  Johannis,  Stein,  Ihering ;  historical  illustrations  are  furnished 
by  Pleehanoff,  Struve,  Cicotti,  Salvemini,  Salvioli,  Arias.  The  adherents 
of  this  theory  include  Vaccaro  and  Gumplowicz,  in  so  far  as  they  regard 
law  as  a  means  for  insuring  ownership,  and  Worms,  in  so  far  as  he  places 
economic  facts  at  the  base  of  the  series  of  social  relations. 

2  This  is  the  theory  maintained  by  Wagner,  Stammler,  Barth,  Ardigb. 

3  This  is  the  theory  of  those  —  forming  the  majority  —  who  speak  of 
an  autonomy,  or  a  reciprocal  influence,  of  the  two  classes  of  phenomena. 

[It  may  be  noted  in  passing,  that  the  author's  logic  has  failed  to  per- 
ceive a  remaining  possibility,  viz.  that  for  some  facts  the  economic  facts 
may  be  causal,  and  for  others  not ;  the  economic  causal  influence,  though 
constant,  being  in  some  cases  diverted  or  counteracted  by  other  facts, 
e.g.  moral  or  political  or  domestic  facts.  This  logical  slip  leaves  open 
to  question  the  validity  of  his  theorem  as  an  explanatory  solution.  —  Ed.1 

*  [Cf.  Novicow,  *'  The  Mechanism  and  Limits  of  Human  Association,'* 
Am.  J.  Sociology,  XXIII,  289  seq.  Novicow  makes  exchange  (widest 
sense)  the  fundamental  social  phenomenon.  —  Ed.] 


Chap.  V.]  VARIATION   OF  JURAL   PHENOMENA  193 

It  seems  plain  that  production,  economic  relation,  and  exchange 
form  a  well-defined  causal  series,  and  that  the  variation  of  the 
instrument  of  labor  is  determined  by  the  necessity  of  production, 
yet  coming  under  the  influence  of  the  economic  relation  and  of 
exchange ;  for  the  groups  of  higher  economic  facts,  once  formed, 
exercise  a  certain  reaction  on  the  lower  facts,  -r-  These  causal 
and  non-causal  relations  must  be  kept  in  mind  in  establishing 
the  influence  which  each  group  of  economic  facts  exercises  on 
the  law.^ 

§  7.  Causes  of  Law  in  General.^  What,  then,  are  the  general 
causes  of  jural  phenomena  ?  That  is,  what  are  the  facts  necessary 
and  sufficient  for  the  rise  and  persistence  of  law  in  every  period 
and  place  in  which  it  has  existed  and  now  exists  ? 

We  have  seen  that  law  developed  out  of  the  collective  reactions 
experienced  by  the  social  group  against  one  of  its  member-elements 
which  by  its  conduct  has  evoked  in  the  others  the  sentiment  of 
hate,  or  of  fear  for  the  future.  The  causes  of  these  reactions  are : 
(a)  the  general  tendency  of  living  beings  to  react  to  all  painful 
stimuli,  resulting  in  those  motions  (in  animals  furnished  with  a 
certain  degree  of  structural  and  functional  complexity  of  the 
central  nervous  system)  which  experience  shows  are  adapted  to 
put  an  end  to  the  painful  condition  by  removing  its  stimulus; 
(6)  the  sentiments  which  lead  the  animal  to  some  form  of  revul- 
sion, immediate  or  deferred,  against  whatever  is  perceived  as  the 
source  of  pain ;  and  secondarily  the  fear  of  future  harm ;  (c)  the 
sentiments  of  sjinpathy,  which  induce  a  reaction  against  one  who 
injures  an  associate. 

1.  These  psychic  and  psycho-social  activities  produce  certain 
collective  social  reactions.  But  never,  in  sub-human  societies, 
do  they  produce  law.  Law  arises  only  in  human  society,  because 
only  the  mental  peculiarities  of  man  (superior  in  quantity  if  not 
in  quality  to  those  of  any  other  animal)  convert  the  collective 
into  jural  reactions,  by  a  well-defined  process  which  we  have  en- 
deavored to  set  forth.^  And  not  even  in  all  human  groups  does 
this  process  take  place.  The  small  nomadic  groups  of  primitive 
hunters  exhibit  no  traces  of  jural  phenomena.  For  maintaining 
them  united  other  needs  suffice,  —  the  need  of  economic  coopera- 
tion, the  need  of  satisfying  the  sex-requirements  which  unite  the 
male  to  his  females,  the  need  of  protection  which  unites  the  children 

\[The  author  here  proceeds  to  illustrate  the  foregoing  thesis  with 
copious  illustrations  from  different  legal  systems.  —  Ed.] 

2  [This  is  §§  146,  147,  pp.  441-446,  of  the  author's  text.  —  Ed.] 

3  [In  an  omitted  chapter.  —  Ed.] 


194  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

to  their  parents.  Muscular  strength  enables  the  male  to  estab- 
lish his  control  over  the  family  group,  and  to  protect  his  women, 
children,  and  possessions  against  attacks  from  outside.  Every 
dispute  that  arises  between  two  groups  is  decided  by  physical 
force;  and  the  inhibitions  between  individuals  permit  plural 
hordes  to  inhabit  the  same  region.  Hence  there  is  thus  far  no 
need  of  rules  of  law,  and  none  arise.  For  the  same  reason,  jural 
facts  are  not  found  within  the  families,  composed  of  a  group  of 
brothers  with  their  wives  and  children;  for  all  the  adult  males 
have  a  practically  equal  physical  power,  and  their  reciprocal 
inhibitions  suffice  to  maintain  their  coexistence  while  their 
economic  interest  suffices  to  maintain  their  cooperation. 

Law,  therefore,  arises  only  in  groups  which  have  reached  a 
certain  numerical  size  and  a  constancy  of  social  activity  which 
requires  a  more  effective  protection  than  that  supplied  by  the 
casual,  impetuous,  inconstant,  and  disorderly  collective  reactions. 

2.  Certain  human  social  facts  are  therefore  among  the  essential 
causes  of  law.  First  of  all,  what  renders  possible  the  co-existence 
of  a  number  of  persons  is  certain  definite  conditions  of  human 
production.  Production  by  human  effort  is  therefore  the  "  causa 
sine  qua  non  "  of  every  social  fact,  —  just  as  nutrition  is  the 
fundamental  fact  of  organic  life.  Human  societies  are  formed  only 
when  the  food  conditions  permit  them  to  live  together,  and  they 
persist  only  when  cooperation  is  needful  for  augmenting  the  sub- 
sistence required  by  increasing  population.  The  increase  of 
population  and  the  differing  resources  of  the  environment  deter- 
mine the  rise  of  human  production,  and  the  changes  of  these  two 
principal  factors  explain  its  earliest  and  most  widespread  varia- 
tions. Production,  therefore,  presupposes  no  other  social  human 
fact  as  its  causative  antecedent. 

3.  We  said  that  the  collective  reactions  give  rise  to  genuinely 
jural  facts  only  when  the  need  for  them  arrives.  This  need  arises 
when  a  guarantee  becomes  necessary  for  certain  collective  social 
activities  and  the  enjoyment  of  certain  collective  goods;  for 
then  the  merely  sub-human  motives,  individual  and  social  (above 
alluded  to),  do  not  suffice  to  assure  such  activities  or  such  enjoy- 
ment. The  prime  social  activity  (first  also  in  time)  is  production, 
which  implies  a  relation  between  the  producers.  When  such 
economic  activity  meets  with  obstruction  from  individual  mem- 
bers, these  obstructions  must  be  overcome  by  rules  relatively 
constant,  in  order  that  the  mental  representation  of  the  sanction 
may  act  on  the  consciousness  of  the  individuals  and  inhibit  their 


Chap.  V.]  VARIATION   OF   JURAL   PHENOMENA  195 

repetition  of  their  hurtful  conduct.     And  so  it  is  that  the  earhest 
traces  of  jural  rules  are  concerned  with  a  guarantee  of  production. 

4.  But  the  mere  existence  of  social  activity  cannot  of  itself 
lead  to  jural  facts.  There  is  needed  also  a  certain  development 
of  the  higher  mental  faculties,  on  which  the  social  requirements 
are  to  act.  Of  these  the  important  ones  are  language  and  the 
power  of  reflection  upon  the  effects  of  collective  reactions.  Law 
could  never  have  arisen  if  the  members  of  human  societies  had 
not  been  capable  of  experimenting  whether  the  prohibition  of 
specific  acts  or  the  elimination  of  the  actors  would  be  followed 
by  a  diminution  in  their  repetition ;  or  if  they  had  not  possessed 
the  wondrous  faculty  of  articulate  language  by  which  to  communi- 
cate their  experiences,  to  formulate  the  rules,  to  apply  them,  and 
to  transmit  their  customs  and  jural  ideas  to  successive  genera- 
tions. Man  alone  possessing  these  faculties,  law  could  arise  only 
in  human  societies. 

This  mental  faculty,  as  a  bio-psychical  cause  of  law,  is  also 
seen  in  the  circumstance  that  when  its  penalties  are  announced, 
the  resulting  inhibition  upon  individual  conduct  can  only  take 
place  through  a  mental  representation  of  the  penalty  as  ensuing 
upon  certain  actions,  this  mental  representation  becoming  a 
dominant  motive  for  conduct.  This  presupposes  suflScient  men- 
tal capacity. 

5.  The  facts  of  sex  and  domestic  life  —  marriage,  family,  re- 
lationship —  must  be  included  as  conditions  essential  to  the  rise 
of  law.  A  priori  they  are  not;  for  in  an  imaginary  primitive 
society  of  promiscuity,  law  could  have  protected  production 
alone.  But  in  all  primitive  societies  that  are  known,  the  family 
existed  before  law  did,  and  formed  everywhere  one  of  its  first 
objects  of  protection,  the  early  differentiations  of  family  having 
already  taken  place.  But  the  variations  of  sex  and  family  facts 
were  themselves  always  determined  by  economic  variations  which 
operated  either  as  their  causal  condition  or  their  causal  motive.^ 
A  causal  motive  for  the  sex  and  family  organization  was  always 
supplied  by  the  requirements  of  reproduction,  and  sometimes 
by  the  requirements  of  production.  Hence,  a  causal  relation 
always  exists  between  economic  facts  and  the  family,  viz.  the 
relation  of  causal  condition,  while  sometimes  it  is  also  the  relation 
of  teleological  cause  (motive).  These  two  classes  of  phenomena 
—  economic  and  sex  facts  —  completely  explain  the  rise  and 
variation  of  family  phenomena.     And  the  variations  in  them  lead 

*  [This  is  elaborately  illustrated  in  the  author's  §§  126-140.  —  Ed.] 


196 


FACTORS    OF    LEGAL   EVOLUTION 


[Part  II. 


to  the  variations  of  law,  i.e.  that  complex  of  rules  which  protects 
a  given  form  of  family,  of  marriage,  of  relationship,  and  of  domes- 
tic life  in  general. 

This  survey  shows  us  that  the  general  causes  of  the  rise  of  law 
may  be  thus  analyzed : 

A.  Conditional  Causes    (a)  Production 

(6)  Hate  and  revenge    Sentiments  de- 
termining indi- 

(c)  Fear  vidual  psychic 

activities 

(d)  Psycho-social  activities  due  to  col- 
lective reactions 

(e)  Human  mental  faculties,  particu- 
larly language,  and  reflection 
on  the  effects  of  collective  re- 
actions. 

(/)   Economic  facts 
(g)  [Family  facts] 


B.  Efficient  Causes 


C.  Teleologic  Causes 


Here  the  causes  (a)  (c)  (d)  (e)  (/)  are  essential,  because  without 
them  no  jural  fact  exists ;  they  are  sufficient,  because  without  the 
intervention  of  any  other  social  human  fact  they  could  lead  to 
the  formation  of  genuinely  jural  phenomena ;  and  they  are  general, 
because  in  every  period  and  region  they  concur  in  the  production 
of  law.  Cause  ih),  being  emotional  and  not  utilitarian,  could 
disappear  in  the  later  evolution  of  law.  Cause  {g)  is  only  teleo- 
logical ;  and  though  most  important  in  explaining  the  variations 
of  law  it  is  not  an  essential  cause,  i.e.  a  "  sine  qua  non." 

§  8.  Partial  Causes  of  Law.  As  social  forms  increase  in  com- 
plexity of  structure  and  function,  new  elements  of  cause  enter. 
Political  power  soon  exercises  a  direct  and  important  reaction 
both  on  the  structure  and  function  of  justice  and  on  the  content 
of  law.  Religion,  'Art,  Science,  at  a  certain  stage  of  their  develop- 
ment, are  protected  by  specific  jural  rules,  and  thus  become  so 
many  more  purposes,  or  teleologic  causes,  of  law.  Furthermore, 
the  law  becomes,  at  a  certain  point  of  its  development,  the  subject 
of  scientific  elaboration,  and  thus  Science  reacts  on  the  juridical 
function. 

But  these  causes  are  neither  primitive  nor  necessary;  for  we 
have  seen  that  jural  phenomena  are  produced  in  the  absence  of 
all  these  higher  social  facts;  nor  are  they  general,  for  societies 
are  found  which  possess  jural  structure  and  function  and  yet 


Chap.  V.]  VARIATION   OF   JURAL   PHENOMENA  197 

possess  neither  political  organization  nor  facts  of  science,  art,  or 
religion.  On  the  other  hand,  all  these  later  social  activities  pre- 
suppose the  existence  of  law  in  so  far  as  it  protects  the  conditions 
and  fundamental  advantages  of  social  life.  Hence,  in  their  first 
appearance  these  classes  of  facts  are  evidently  effects  and  not 
causes  of  the  law,  which  is  economic  and  genetic.^  Political 
power,  for  example,  serves  to  secure  the  fulfilment  of  the  jural 
function,  either  by  formulating  the  mode  of  law-making  or  by 
aiding  in  enforcement  of  law  or  by  supplying  organs  of  justice. 
Art  invests  the  customary  rules  with  poetic  form.  Science  be- 
stows its  logical  methods  for  elaborating  and  systematizing  law. 
Religion  threatens  supernatural  terrors  to  violators  of  law  and  thus 
completes  law's  purpose.  But  the  original  fact  is  always  a  direct 
causal  action  of  law  on  the  higher  social  activities;  then  comes 
their  reaction  on  jural  phenomena,  —  analogous  to  that  of  the 
tissues  and  their  elemental  functions  in  the  organism. 

We  have  therefore  a  double  reason  for  denying  to  the  other 
enumerated  social  phenomena  the  status  of  primitive,  genetic, 
essential,  and  universal  causes  of  law:  (1)  Causal  relations  be- 
tween law  and  the  special  activities  distinct  from  economic  and 
domestic  ones  do  not  exist  in  all  societies;  (2)  law  exercises  a 
direct,  ascendant,  causal  action  upon  these  activities  before  they 
react  upon  the  law. 

»  [After  all,  then,  does  not*  the  author's  thesis  reduce  itself  to  a  matter 
of  words?  For  if  "essential  cause"  is  to  mean  merely  the  causes  which 
first  gave  rise  to  primitive  law,  but  if  since  that  time  other  classes  of  facts 
have  actually  been  causes,  we  are  left  with  the  barren  conclusion  that 
at  one  early  time  in  the  history  of  law  the  only  universal  causes  were  those 
mentioned.  But  the  interest  of  the  quest  for  the  causes  of  law  is  far 
from  limited  to  primitive  times.  —  Ed.] 


A.  —  GEOPHYSICAL   FACTORS  ^ 


Chapter  VI 
LAW  AND   GEOGRAPHY  1 


§  1.    Preliminary. 
§  2.    The  Great  Legal  Systems. 
§  3.    Roman  and  Common  Law. 
§  4.    Public  and  Private  Law. 
§  5.    Law  in  Contact  and  Law  i 
Isolation. 


6.\,  L4w  and  Darwinism. 

7.  Law  and  Language. 

8.  Conquest  and  Colonization. 

9.  The  Inertia  of  Law. 

10.  Particular  Legal  Institutions. 

11.  Conclusion. 


§  1.  Preliminary.  The  study  of  institutions  in  relation  to 
their  surroundings,  or  to  adopt  what  Leslie  Stephen  called  ''  the 
jargon  of  science",  their  environment,  is  one  that  has  been  under- 
taken by  a  series  of  distinguished  thinkers  at  long  intervals  of 
time,  but  has  never  permeated  the  main  currents  of  thought. 
We  find  the  beginnings  of  it,  as  of  most  other  prime  factors  of 
knowledge,  in  the  writings  of  Aristotle.  There  it  lay  buried, 
while  speculation  moved  in  entirely  different  directions,  until 
the  Renascence  was  far  advanced.  Then  it  was  placed  upon 
a  definite  basis  by  the  foremost  publicist  of  the  sixteenth  century, 
Jean  Bodin  of  Angers.  The  profundity  and  originality  of  his 
thought  was  largely  prevented  from  obtaining  the  recognition 
due  to  it  (especially  in  France)  by  his  prolix  and  involved  style. 
Nearly  200  years  later  his  ideas  were  amplified  by  an  equally  great 
thinker  who  was  in  addition  a  master  of  prose  style,  —  Montes- 
quieu. Of  the  actual  influence  of  Montesquieu  this  is  not  the 
place  to  speak,  but  no  one  arose  to  write  a  work  on  the  lines  of  the 
"  Esprit  des  Lois  '^  until  Buckle  published  his  *'  History  of  Civili- 
zation "  in  1857.  The  feature  that  strikes  the  modern  reader  in 
the  works  of  these  three  old  masters  is  the  tendency  to  exaggerate 
the  influence  of  climate  at  the  expense  of  all  other  geographical 
factors. 

Buckle  had  hardly  published  his  first  volume  when  the  formu- 


1  [By  H.  J.  Rand  ALT,  of  Bridgend,  Glamorgan,  England, 
was  written  especially  for  this  volume.] 

198 


This  chapter 


Chap.   \1.]  LAW   AND   GEOGRAPHY  199 

lation  of  the  theory  of  Evolution  switched  the  main  body  of  specu- 
lation along  somewhat  different  (but  not  inconsistent)  lines,  and 
for  years  his  work  was  treated  with  scant  attention  and  less 
justice.  So  the  progress  of  the  geographical  study  of  history  was 
retarded.  The  foundation  of  the  School  of  Geography  at  Oxford 
by  Mr.  H.  J.  Mackinder  and  the  publication  of  his  ''  Britain  and 
the  British  Seas  "  (1902),  inaugurated  a  great  revolution  in  the 
teaching  and  methodk  of  geography. 

Up  to  the  present,  however,  these  new  methods  (or  re-statements 
of  old  methods)  have  only  been  applied  in  a  small  degree  to  the 
development  of  institutions,  and  not  at  all  to  the  evolution  of  law. 
No  great  things  can  as  yet  be  expected  of  so  young  a  study,  and 
the  present  essay  must  be  regarded  as  a  bundle  of  random  sug- 
gestions towards  the  nature  of  the  problems  to  be  faced,  and  in 
no  way  as  a  statement  of  definite  and  proved  conclusions. 

It  is  not  necessary  for  our  immediate  purpose,  to  attempt  an 
exhaustive  definition  of  geography.  The  one  indispensable  in- 
strument of  geographical  study  is  the  Map.  In  the  case  of  In- 
stitutions it  means  a  study  of  their  distribution  over  the  surface 
of  the  earth,  the  causes  of  that  distribution,  and  its  relation  to  the 
presence  or  absence  of  other  factors.  When  one  commences  to 
study  the  location  of  rules  with  the  aid  of  a  map,  one  is  studying 
them  from  the  geographical  standpoint. 

§  2.  The  Great  Legal  Systems.  The  mot  of  Voltaire  that  a 
traveler  in  France  changed  laws  as  often  as  he  changed  horses 
can  only  be  understood  in  a  restricted  sense,  for  the  laws  that  he 
changed  were  only  local  variations  of  one  great  system.  Looking 
at  the  matter  in  a  broader  way  and  putting  aside  the  customary 
systems  of  savage  and  semi-savage  races,  we  may  classify  the 
developed  legal  systems  of  the  world  under  five  main  headings, 
viz. : — 

(1)  The  Chinese. 

(2)  The  Hindu. 

(3)  The  Mohammedan. 

(4)  The  Roman  and  its  modern  representatives. 

(5)  The  Germanic  or  Common  Law,  of  which  the  English  is 
the  chief  example. 

The  Chinese  system  may  be  put  aside  for  the  moment  as  one  of 
the  most  striking  examples  of  the  growth  of  law  in  a  condition  of 
extreme  isolation. 

The  others  fall  into  two  well-defined  categories  which  may  be 
called  the  Religious  and  the  Secular.     The  Hindu  and  the  Moham- 


200  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

medan,  like  the  European  of  the  Carolingian  period,  carries  his 
law  about  with  him  as  a  personal  possession.  It  is  inalienably 
his  by  virtue  of  the  religion  that  he  professes,  and  absolutely 
independent  both  of  his  territorial  location  and  of  his  political 
allegiance.  The  religious  systems  of  law  belong  to  a  lower  plane 
of  human  evolution  than  the  secular.  They  are  concomitant 
with  the  stage  of  thought  that  existed  before  the  ideas  of  Sin, 
Legal  Delict,  and  Moral  Wrong  had  been  differentiated ;  a  phase 
very  clearly  illustrated  to  us  by  the  example  of  the  Ten  Command- 
ments, where  ordinances  of  religion,  law,  and  ethics  rub  shoulders 
together  without  the  least  sense  of  incongruity.  Therefore  these 
systems  have  an  inevitable  tendency  towards  extreme  rigidity, 
because  any  change  in  the  law  would  at  once  be  regarded  as  an 
alteration  in  religion,  and  that  to  the  vast  majority  of  mankind 
would  be  an  inconceivable  act  of  impiety.  Of  their  geographical 
distribution  nothing  valuable  can  yet  be  said.  The  study  of 
religions  from  that  point  of  view  has  hardly  been  attempted. 
But  even  were  it  otherwise  it  would  not  shed  any  great  light  upon 
the  immediate  matter  in  hand,  because  the  law  in  these  instances 
is  subordinate  to  the  religion,  and  the  distribution  of  the  latter 
would  hardly  help  in  elucidating  the  conditions  that  govern  the 
distribution  of  law  as  such. 

§  3.  Roman  and  Common  Law.  The  following  observations 
therefore  will  be  confined  to  the  secular  legal  systems  and  prin- 
cipally to  those  of  Western  Europe,  where  law  exists  as  a  separate 
entity,  with  individual  growth.  But  as  many  of  the  facts  are 
none  too  familiar  it  may  be  advisable  in  the  first  place  to  attempt 
a  brief  description  of  the  legal  geography  of  France,  as  a  repertory 
of  facts  from  which  we  may  draw  illustrations  of  principle. 

If  we  put  aside  Sclavonic  Law  as  a  comparatively  isolated 
system,  the  whole  legal  history  of  Western  P^urope  since  the  es- 
tablishment of  the  Roman  Empire  may  be  characterized  broadly 
as  the  action  and  reaction  of  the  Roman  and  Germanic  Systems 
upon  one  another.  These  two  systems  have  always  been  dif- 
ferentiated by  vital  distinctions.  The  meaning  of  this  statement 
may  be  made  a  little  clearer.  In  classifying  languages  philolo- 
gists pay  small  regard  to  the  enormous  number  of  words  that  one 
language  may  have  borrowed  from  another,  as  English  has  done 
from  the  classical  and  Romance  tongues;  but  they  look  at  the 
five  hundred  or  so  words  that  are  in  the  commonest  use,  and  above 
all  at  the  structure  of  the  language,  its  grammar  and  its  syntax. 
In  the  same  way  the  jurist  would  not  seize  upon  the  number  of 


Chap.  VI.]  LAW  AND   GEOGRAPHY  201 

rules  that  may  be  fundamentally  the  same  in  two  legal  systems, 
e.g.  he  would  pay  little  attention  to  the  resemblances  between  the 
rules  of  intestate  inheritance  in  the  118th  Novel  of  Justinian  and 
in  the  Caroline  Statutes  of  Distribution,  but  would  notice  the 
differences  of  structure,  of  procedure,  and  of  method.  Wide 
therefore  as  are  the  variations  between  the  Roman  and  the  Ger- 
manic laws  in  the  matter  of  particular  rules,  these  are  altogether 
subordinate  to  the  facts  that  the  Roman  law  is  founded  upon  the 
interpretation  of  written  texts,  Common  law  upon  the  applica- 
tion of  precedents ;  that  the  procedure  of  the  one  is  written  and 
inquisitorial,  of  the  other  oral  and  accusatory. 

This  interaction  of  the  two  great  systems  is  nowhere  so  notably 
illustrated  as  in  the  history  of  France.  Right  down  to  the  great 
cataclysm  of  the  Revolution  and  the  promulgation  of  the  Napo- 
leonic Codes  the  centralized  monarchy  of  France  was  divided  into 
two  areas  of  private  law,  the  Pays  dii  Droit  Coutumier  in  the 
North,  radiating  from  the  military  center  of  Paris,  and  the  Pays 
du  Droit  Ecrit  in  the  south,  based  upon  the  ancient  Provincia  and 
radiating  through  the  gap  of  Carcassonne.  The  boundary  line 
between  the  two  presented  some  remarkable  features.  On  the 
western  coast  it  started  from  the  Isle  of  Oleron,  so  noteworthy  in 
the  history  of  maritime  law,  thence  passed  well  south  of  the  gap 
of  Poitiers  to  Limoges  and  so  on  along  the  water  parting  of  the 
central  mountain  mass  of  the  Auvergne,  until  it  reached  the  con- 
fines of  the  Rhone  Valley.  Herp  it  turned  sharply  northwards- 
so  as  to  include  within  the  territory  of  the  Droit  Ecrit  the  whole  of 
the  Rhone-Saone  valley  up  to  the  borders  of  Burgundy  and  the 
Lake  of  Geneva.  The  actual  line  of  demarcation  passes  some 
distance  north  of  Macon.^ 

Such  a  division  points  to  several  geographical  and  historical 
correlations. 

1.  It  coincides  almost  exactly  with  the  language  division  into 
the  Prankish  or  Germanic  Langue  d'oil,  and  the  Romance  Langue 
d'oc. 

2.  The  strong  military  power  based  on  Paris  was  able  to  hold 
the  entire  valley  of  the  Loire  and  its  tributaries  and  to  push  its 
culture  south  beyond  the  watershed  of  this  valley  through  the  gap 
of  Poitiers. 

3.  The  division  tends  to  afford  additional  proof  of  the  fact  that 
the  Rhone-Saone  Valley  was  not  a  main  artery  of  communication 
until  late  in  the  historical  period.     The  lower  part  was  distinctly 

^  See  the  map  in  "General  Survey  of  European  Legal  History",  p.  201. 


202  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

Mediterranean;    the  upper  part  was  under  the  influence  of  the 
strong  miHtary  power  of  Burgundy,  holding  the  gap  of  Belfort. 

4.  The  population  of  the  south  was  predominantly  Roman, 
that  of  the  north  Germanic.  The  south  was  the  region  of  Medi- 
terranean culture,  the  home  of  the  arts  of  peace,  the  north  the 
center  of  the  military  power.  As  the  need  for  military  strength 
grew  less  urgent  with  the  increasing  security  of  the  frontiers,  the 
influence  of  the  southern  culture  spread  further  and  further  north. 
In  legal  affairs  the  Roman  law  had  always  been  a  sort  of  Common 
Law  to  be  appealed  to  in  case  of  necessity  even  in  the  region  of  the 
customs,  and  finally,  backed  by  the  paramount  authority  of  the 
writings  of  Pothier,  the  Droit  Ecrit  stamped  its  influence  inefface- 
ably  upon  the  Code  Napoleon. 

5.  The  division  may  in  a  supplementary  way  be  correlated 
with  the  agriculture  of  the  Mediterranean  region,  based  primarily 
upon  the  cultivation  of  the  olive,  i.e.  a  tree  cultivation,  and  the 
agriculture  of  the  north,  based  primarily  upon  the  production 
of  wheat  grain  and  wine. 

§  4.  Public  and  Private  Law.  The  first  fact  that  emerges  clearly 
from  this  sketch  of  the  legal  geography  of  France  is  that  the  dis- 
tribution of  Public  Law,  confining  the  term  to  the  constitution  and 
governmental  machinery  of  a  state,  has  little  or  no  relation  to  the 
distribution  of  the  Private  Law  that  governs  the  everyday  affairs  of 
men.  Contemporary  observers  would  have  regarded  the  French 
monarchy  from  the  time  of  Richelieu  to  that  of  the  Revolution  as 
the  most  centralized  and  despotic  state  in  Europe.  Though  not 
nearly  so  strong  in  reality  as  in  outward  seeming,  yet  on  the  face  of 
it  the  central  despotism  could  have  abolished  by  a  stroke  of  the  pen 
a  distinction  that  must  have  given  rise  to  endless  inconveniences 
in  administration.  But  notwithstanding  the  ordinances  prepared 
under  the  influence  of  Colbert,  it  never  did  so.  We  have  the 
picture  of  this  apparent  despotism  enforcing  within  the  boundaries 
of  the  same  realm  two  distinct  systems  of  private  law  and  numer- 
ous varieties  of  customs.  The  point  calls  for  particular  emphasis 
because  even  some  historians  are  apt  to  disregard  it,  though  it 
affected  the  life  of  every  subject  of  the  Roi  Soleil. 

This  principle,  so  w^ell  illustrated  by  the  instance  of  France, 
appears  to  be  of  very  general  application.  No  better  modern 
illustration  could  be  given  than  the  case  of  British  institutions 
both  within  and  without  the  Empire.  The  principles  of  represen- 
tative institutions  and  responsible  government  have  spread  from 
their  home  in  the  British  Isles  to  countries  such  as  France  and 


Chap.   VI.]  LAW  AND   GEOGRAPHY  203 

Italy,  which  have  never  shown  the  shghtest  indination  to  adopt 
the  Common  Law,  and  it  appears  Hkely  that  they  will  gradually 
become  operative  in  Russia  where  the  private  law  is  Sclavonic. 
Similarly,  within  the  Empire  the  French  and  English  Laws 
flourish  side  by  side  in  the  one  Dominion  of  Canada ;  the  Roman 
Dutch  and  the  English  likewise  in  the  Union  of  South  Africa; 
and  within  the  limited  boundaries  of  Great  Britain  itself,  Scot- 
land, after  more  than  two  centuries  of  complete  political  union, 
jealously  guards  its  peculiar  jurisprudence.  The  facts  that  in- 
fluence the  distribution  of  political  institutions  are  a  subject 
beyond  the  scope  of  this  essay,  but  whatever  they  may  be  it  can 
be  proved  to  demonstration  that  they  are  entirely  different  from 
those  that  govern  the  geography  of  private  law. 

§  5.  Law  in  Contact  and  Law  in  Isolation.  From  the  rise  of 
the  historical  school  of  law  in  Germany  under  the  leadership  of 
Savigny  it  has  gradually  been  accepted  as  an  axiom  that  law  is  a 
growth  conditioned  by  the  national  consciousness  of  each  people. 
The  application  of  the  doctrine  of  evolution  to  every  manifesta- 
tion of  human  activity  has  immensely  strengthened  the  position 
of  this  principle,  so  that  today  it  is  rather  necessary  to  point  out 
its  limitations.  However  "  natural  "  the  development  of  law  may 
be,  the  process  is,  at  any  rate,  in  the  more  civilized  forms,  a  con- 
scious growth.  Statute  law  is  clearly  "made",  but  the  same- 
observation  really  applies  to  the  great  bulk  of  the  rules  in  all  the 
great  legal  systems,  i.e.  they  are  definite  efforts  of  the  human  in- 
tellect to  formulate  the  rules  under  which  men  play  the  great  game 
of  life. 

It  is  obvious  that  the  nature  of  these  rules  will  be  largely  con- 
ditioned by  the  social  structure  of  the  particular  society  under 
observation,  and  that  social  structure  in  its  turn  will  be  condi- 
tioned by  the  external  environment.  On  broad  lines  these  in- 
fluences are  obvious.  It  is  clear  that  the  maritime  law  of  Peru 
and  Switzerland  will  be  rudimentary;  and  that  the  law  of  a 
pastoral  community  will  differ  from  that  of  an  agricultural ;  that 
of  one  based  on  tree  cultivation  from  one  based  on  corn  raising; 
and  that  of  industrial  and  trading  communities  from  all  others. 
The  works  of  Montesquieu  and  Buckle  were  based  on  this  notion, 
except  that  their  ideas  of  external  conditions  were  largely  confined 
to  the  consideration  of  climate.  It  is  not  possible  to  say  anything 
very  apposite  on  this  subject  within  a  confined  limit  of  space, 
but  as  far  as  the  developed  western  systems  of  law  are  concerned 
it  is  scarcely  one  of  primary  importance.     Europe,  broadly  speak- 


204  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

ing,  is  fairly  uniform  in  geographical  conditions,  and  is  divided 
into  two  broad  zones  only,  —  the  Mediterranean  region  and  the 
Northern  regions  —  the  one  being  the  home  of  the  Roman  law 
and  the  other  of  the  Germanic  laws. 

Of  more  importance  for  our  immediate  purpose  is  the  distinc- 
tion between  Law  in  Isolation  and  Law  in  Contact.  The  law  of 
an  isolated '  community  is  likely  to  be  a  fruitful  study  from  the 
geographical  point  of  view  because  such  a  community  is  likely 
to  be  influenced  to  a  very  great  degree  by  the  natural  conditions, 
without  pressure  from  surrounding  communities,  and  its  law  will 
reflect  its  social  conditions.  China  is  the  standard  example  of 
isolation  rigidly  maintained  over  an  immense  period  of  time, 
but  in  European  history  the  only  instance  is  the  case  of  Iceland. 
Its  isolation  never  approached  the  completeness  of  that  of  China, 
because  the  Norwegian  settlers  brought  their  law  with  them  and 
communication  between  its  inhabitants  and  those  of  the  Mother 
country  never  ceased.  At  the  same  time  its  law  and  institutions 
are  of  extreme  interest,  as  has  been  ably  shown  by  Lord  Bryce  in 
his  "  Studies  in  History  and  Jurisprudence."  From  the  legal 
point  of  view  isolation  may  be  effectually  maintained  apart  from 
and  even  in  spite  of  physical  contact,  but  such  intellectual  isola- 
tion is  seldom  if  ever  a  matter  of  law  pure  and  simple,  it  is  almost 
always  founded  upon  a  difference  of  creed.  The  instance  of  the 
Buddhists  and  the  Mohammedans  in  India  is  one  that  will  occur 
to  everyone. 

The  legal  history  of  the  progressive  nations  of  the  world,  however, 
centers  round  the  systems  that  were  continuously  in  contact 
with  one  another,  and  may  be  regarded  as  a  study  of  the  condi- 
tions under  which  these  systems  progressed  or  declined.  It  has 
already  been  pointed  out  that  the  mutual  action  and  interaction 
of  the  Germanic  and  Roman  laws  form  the  central  feature  of  the 
legal  history  of  Europe. 

§  6.  Law  and  Darwinism.  Given,  therefore,  two  systems  of 
law  in  contact  with  one  another,  upon  what  external  or  cultural 
conditions  will  their  stability  depend,  or  if  one  expands  at  the 
expense  of  the  other,  what  will  be  the  limiting  causes  of  that 
expansion  or  retrogression? 

Of  the  cultural  conditions  language  is  obviously  one  of  the  most 
important.  Unfortunately  the  subject  of  the  geography  of  lan- 
guage (if  one  may  use  the  term)  is  one  the  literature  of  which  ap- 
pears to  be  non-existent.  The  relations  between  language  and 
race  have  been  studied  in  connection  with  the  controversy  on  the 


Chap.   \^.]  LAW   AND   GEOGRAPHY  205 

Aryan  question;  but  the  main  result  has  been  to  demonstrate 
that  the  two  things  are  almost  entirely  independent  of  one  another. 
The  only  remarks  of  much  value  that  the  writer  has  been  able  to 
find,  occur  in  a  most  unexpected  place,  viz.  in  Lyell's  ''  Geo- 
logical Evidences  of  the  Antiquity  of  Man."  Lyell  was  a  rather 
late  convert  to  the  Darwinian  theory,  and  expounded  it  from 
a  standpoint  that  was  distinctly  original.  In  doing  so  he  insti- 
tuted a  comparison  between  the  development  of  languages  and 
species,  and  demonstrated  that  every  language  was  constantly 
''  varying  "  ;  that  there  was  a  constant ''  struggle  for  life  "  going 
on  among  the  different  forms;  and  that  the  existing  forms  were 
a  result  of  the  survival  of  the  fittest.  Having  proved  that  no 
European  language  was  a  thousand  years  old,  and  that  the  geo- 
graphical relations  of  the  living  and  dead  languages  favor  the 
hypothesis  of  the  living  one  having  been  derived  from  the  extinct, 
he  proceeds  to  make  the  following  remarks :  ^ 

"  Although  the  speakers  may  be  unconscious  that  any  great  fluctu- 
ation is  going  on  in  their  language,  —  although  when  we  observe  the 
manner  in  which  new  words  and  phrases  are  thrown  out,  as  if  at 
random  or  in  sport,  while  others  get  into  vogue,  we  may  think  the 
process  of  change  to  be  the  result  of  mere  chance,  —  there  are,  never- 
theless, fixed  laws  in  action  by  which,  in  the  general  struggle  for 
existence,  some  terms  and  dialects  gain  the  victory  over  others.  The 
slightest  advantage  attached  to  some  new  mode  of  pronouncing  or 
spelling,  from  considerations  of  brevity  or  euphony,  may  turn  the 
scale,  or  more  powerful  causes  of  selection  may  decide  which  of  two 
or  more  rivals  shall  triumph  and  which  succumb.  Among  these  are 
fashion,  or  the  influence  of  an  aristocracy,  whether  of  birth  or  educa- 
tion, popular  writers,  orators,  preachers,  —  a  centralised  government 
organising  its  schools  expressly  to  promote  uniformity  of  diction, 
and  to  get  the  better  of  provincialisms  and  local  dialects.  Between 
these  dialects,  which  may  be  regarded  as  so  many  '  incipient  lan- 
guages ',  the  competition  is  always  keenest  when  they  are  most  nearly 
allied,  and  the  extinction  of  any  one  of  them  destroys  some  of  the 
links  by  which  a  dominant  tongue  may  have  been  previously  con- 
nected with  some  other  widely  distinct  one.  It  is  by  the  perpetual 
loss  of  such  intermediate  forms  of  speech  that  the  great  dissimilarity 
of  the  languages  which  survive  is  brought  about.  Thus  if  Dutch 
should  become  a  dead  language,  English  and  German  would  be  sepa- 
rated by  a  wider  gap. 

"  Some  languages  which  are  spoken  by  millions,  and  spread  over  a 
wide  area,  will  endure  much  longer  than  others  which  have  never 

1  4th  ed.,  1873,  pp.  512  et  aeq. 


206  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

had  a  wide  range,  especially  if  the  tendency  to  incessant  change  in  one 
of  the  dominant  tongues  is  arrested  for  a  time  by  a  standard  literature. 
But  even  this  source  of  stability  is  insecure,  for  popular  writers  them- 
selves are  great  innovators,  sometimes  coining  new  words,  and  still 
oftener  new  expressions  and  idioms,  to  embody  their  own  original 
conceptions  and  sentiments,  or  some  peculiar  modes  of  thought  and 
feeling  characteristic  of  their  age.  Even  when  a  language  is  regarded 
with  superstitious  veneration  as  the  vehicle  of  divine  truth  and 
religious  precepts,  and  which  has  prevailed  for  many  generations,  it 
will  be  incapable  of  permanently  maintaining  its  ground.  Hebrew 
had  ceased  to  be  a  living  language  before  the  Christian  era.  San- 
scrit, the  sacred  language  of  the  Hindoos,  shared  the  same  fate,  in 
spite  of  the  veneration  in  which  the  Vedas  are  still  held,  and  in  spite 
of  many  a  Sanscrit  poem  once  popular  and  national." 


"  If  the  doctrine  of  gradual  transmutation  be  applicable  to  lan- 
guages, all  those  spoken  in  historical  times  must  each  of  them  have 
had  a  closely  allied  prototype;  and  accordingly,  whenever  we  can 
thoroughly  investigate  their  history,  we  find  in  them  some  internal 
evidence  of  successive  additions  by  the  invention  of  new  words  or 
the  modification  of  old  ones.  Proofs  also  of  borrowing  are  discernible, 
letters  being  retained  in  the  spelling  of  some  words  which  have  no 
longer  any  meaning  as  they  are  now  pronounced,  —  no  connection 
with  any  corresponding  sounds.  Such  redundant  or  silent  letters, 
once  useful  in  the  parent  speech,  have  been  aptly  compared  by  Mr. 
Darwin  to  rudimentary  organs  in  living  beings,  which,  as  he  inter- 
prets them,  have  at  some  former  period  been  more  fully  developed, 
having  had  their  proper  functions  to  perform  in  the  organism  of  a 
remote  progenitor." 

We  have  ventured  to  make  this  long  quotation  because  the  whole 
argument  can  be  used  of  law  with  just  as  great  force  as  it  can  of 
language.  Among  legal  systems  in  contact  with  one  another 
there  is  proceeding  a  continuous  struggle  for  life,  and  those  that 
survive  must  be  assumed  to  be  the  fittest  under  the  actual  con- 
ditions that  obtain  at  any  particular  time.  All  kinds  of  ''  in- 
fluences "  political,  social,  economic,  psychological,  and  geograph- 
ical may  determine  ''  which  of  two  rivals  shall  triumph  and  which 
succumb."  So  in  law  we  find  "  internal  evidence  of  successive 
additions  "  and  equally  of  "  borrowing  ",  while  every  old  estab- 
lished system  is  full  of  ''  rudiments  "  that  once  served  a  useful 
purpose,  but  are  now  as  great  a  nuisance  as  the  ''  rudimentary 
organs  "  are  to  man. 


Chap.  VI.]  LAW  AND   GEOGRAPHY  207 

§  7.  Law  and  Language.  With  regard  to  the  particular  rela- 
tions between  law  and  language,  the  example  of  France  would 
appear  to  show  that  they  are  of  an  extremely  intimate  character. 
There  the  linguistic  and  legal  boundaries  coincided,  the  Langue 
d'oc  being  coterminous  with  the  Droit  Ecrit,  and  the  Langue  d'oil 
with  the  Droit  Coutumier.  If  this  instance  stood  alone,  one  could 
fairly  argue  either  that  distribution  of  law  was  dependent  upon 
the  distribution  of  language,  or  else  that  both  were  equally  af- 
fected by  the  same  set  of  causes. 

The  position  in  South  Africa  is  extremely  interesting.  There, 
before  the  coming  of  the  English,  the  Dutch  Taal  was  the  es- 
tablished language;  and  the  Roman-Dutch  the  established  law. 
Since  that  time  both  have  had  to  maintain  a  struggle  against  the 
later  invaders,  and  English  is  slowly  spreading  from  the  towns 
to  the  veldt,  just  as  from  the  Edwardian  conquest  onwards  it 
has  been  slowly  spreading  from  the  towns  to  the  mountains  of 
Wales.  An  analogous  struggle  is  taking  place  in  the  legal  world. 
The  Roman-Dutch  is  the  recognized  law,  but  the  English  in- 
fluence is  spreading  in  upon  it,  not  only  by  statute  but  also  by 
judicial  decision.  Quite  recently  the  typically  English  doctrine 
of  "  consideration  "  in  the  law  of  contract  appears  to  have  been 
acquired  in  the  latter  way  with  perhaps  little  regard  for  the  "  ele- 
gancies "  of  jurisprudence. 

On  the  other  hand,  if  we  turn  to  Great  Britain,  we  find  an  en- 
tirely different  relation  between  law  and  language.  Of  the  Celtic, 
languages  spoken  in  the  country,  Welsh  is  by  far  the  most  tena- 
cious. On  the  whole  it  may  be  a  dying  tongue,  but  if  so,  like 
Charles  II,  it  takes  an  unconscionable  time  in  doing  it.  The  Welsh- 
man is,  if  anything,  more  "  clannish  "  or  "  national  "  than  the 
Scot.  For  centuries  he  has  fought  a  sturdy  fight  to  preserve  his 
own  individuality  in  religion,  in  modes  of  thought,  ways  of  life, 
and  especially  in  language,  against  the  steady  pressure  of  Anglo- 
Saxon  influence.  But  of  the  Welsh  law  not  one  jot  or  tittle  re- 
mains alive  except  some  sparse  fragnients  preserved  in  the  customs 
of  certain  manors.  For  the  rest  the  '*  Ancient  Laws  of  Wales  " 
are  merely  a  subject  of  antiquarian  curiosity.  The  Statute  of 
Rhuddlan,  passed  to  confirm  the  Edwardian  conquest,  provided 
for  the  continuance  of  certain  Welsh  laws  in  the  conquered  areas, 
but  apparently  by  the  time  of  Henry  VIII  all  desire  to  preserve 
a  distinct  system  had  disappeared,  and  the  Act,  often  called  "  the 
Statute  of  Wales  ",  ^  provided  for  a  practically  complete  assimi- 
1  27  Henry  VIII  c.  26. 


208  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

lation  of  the  laws  of  the  two  countries  in  the  most  important 
matters,  though  establishing  a  distinct  judicature  that  lasted 
until  1830.     The  language  was  preserved,  but  the  law  was  lost. 

In  Scotland,  on  the  contrary,  the  law  has  been  studiously  pre- 
served, the  language  all  but  lost.  Gaelic  is  not,  like  Welsh,  a  living 
tongue  in  the  industrial  parts  of  the  country;  but  merely  main- 
tains a  precarious  existence  in  the  remote  highlands  and  islands. 
Scots  law  was  definitely  preserved  by  the  Act  of  Union  in  1707 
and  remains  to  this  day  a  system  full  of  vitality  and  differing 
in  many  essentials  from  the  English  system.  Burns  in  the  eight- 
eenth century  in  writing  a  great  patriotic  song  penned  the  lines 

"  Wha  for  Scotland's  king  and  law 
Freedom's  sword  will  strongly  draw." 

But  no  contemporary  Welsh  poet  would  have  used  similar  ex- 
pressions for  the  simple  reason  that  they  would  have  conveyed 
no  meaning  to  ninety-nine  per  cent  of  his  countrymen. 

It  would  be  extremely  interesting  to  discuss  at  some  length 
the  historical  and  cultural  reasons  for  this  great  difference  be- 
tween the  two  countries,  but  considerations  of  space  prevent  one 
from  doing  more  than  mentioning  the  most  prominent : 

(1)  The  English  and  Welsh  Laws  did  not  differ  so  greatly  from 
one  another  at  the  time  of  the  conquest  as  the  English  and  Scots 
did  at  the  time  of  the  Union.  Both  might  be  classed  as  belonging 
to  the  Germanic  systems,  and  both  existed  in  a  feudalized  society. 
Consequently  the  obstacles  to  the  assimilation  of  one  by  the  other 
were  not  unduly  formidable. 

(2)  The  English  law  under  Edward  I  was  an  organized  system 
in  the  hands  of  a  trained  and  educated  guild  of  lawyers.  Welsh 
law  possessed  no  such  aids,  and  the  pressure  of  the  stronger  system 
was  therefore  irresistible.  "  Taught  law  is  tough  law,"  as  Mait- 
land  remarked. 

(3)  Scots  law  at  the  time  of  the  Union  was  under  the  strong 
protection  of  the  Court  of  Session  (established  in  1532)  and  of  the 
College  of  Advocates.  It  had  ''  received  "  the  Roman  law,  and 
therefore  differed  very  greatly  from  the  English.  The  social 
conditions  in  the  two  countries  were  also  widely  different.  Con- 
sequently the  law  was  able  to  resist  the  outside  influence  success- 
fully. 

To  conclude  this  section ;  is  it  possible  to  deduce  any  principle 
at  all  from  the  facts  that  we  have  examined?  Quite  tentatively 
we  think  this  may  be  said :    Law  and  language  will  generally 


Chap.  VI.]  LAW  AND   GEOGRAPHY  209 

tend  to  develop  independently  of  one  another;  subject  to  this 
exception,  that  where  a  difference  of  language  coincides  with  a 
marked  difference  of  general  culture,  the  law  will  follow  the  same 
division,  or  in  other  words,  the  difference  of  general  culture  will 
carry  with  it  a  diversity  of  both  language  and  law. 

§  8.  Conquest  and  Colonization.  As  under  so  many  of  the 
other  headings  of  this  essay  nothing  more  can  be  attempted  at  the 
present  moment  on  this  branch  of  the  subject  than  to  suggest 
lines  of  research.  Law  is  simply  a  single  manifestation  of  general 
culture,  and  untj[_n_]fflftrp  PYhmiRt?vf^~-^m^'"hn'^  been  made  of  the 
culturai'effects  of  both  conquest  and  colonization  upon  both  parties 
to  both  processes,  it  is  not  possible  to  write  to  much  advantage. 
Certain  generalizations  like  **  Graecia  capta  ferum  victorem  cepit  " 
occur  to  the  mind,  but  they  are  mostly  deductions  from  single 
instances  and  therefore  of  small  value  until  their  limitations  have 
been  defined.  We  have  already  seen  in  the  case  of  the  legal  and 
linguistic  relations  in  France,  how  dangerous  it  is  to  deduce  large 
conclusions  from  insufficient  data.  We  may  say,  however,  that 
the  study  will  have  to  be  based  upon  the  long  histories  and  vi- 
cissitudes of  the  Roman  and  English  legal  systems.  In  the  ancient 
world,  in  spite  of  the  spreading  of  Greek  culture  over  the  Roman 
Empire,  it  was  the  Roman  and  not  the  Greek  law  that  prevailed. 
This  aspect  of  the  matter  is  discussed  to  some  extent  in  well-known 
passages  of  Maine's  '^Ancient  Law  ",  but  it  ought  to  be  reconsidered 
in  view  of  our  greater  knowledge.  Subsequent  researches  have 
proved  that  Maine  altogether  underestimated  the  value  and  the 
position  of  Greek  law;  though  it  is  true  to  say  that  the  Greek 
genius  attained  its  highest  manifestations  in  the  directions  of  art, 
pure  literature,  and  philosophy,  while  the  Roman  was  at  its 
best  in  administration  and  law. 

Even  more  fruitful  than  the  story  of  classical  antiquity  will 
be  the  long  story  of  the  Germanic  invasions,  how  far  and  why  the 
conquerors  succeeded  in  imposing  their  own  law  upon  the  dif- 
ferent provinces  of  the  Empire,  and  how  the  old  legal  system  rose 
again  and  reasserted  itself  in  the  western  Mediterranean  lands  and 
was  even  "  received  "  in  Germany,  where  the  eagles  of  Rome 
had  never  held  sway.  Equally  instructive  will  Hie  the  story  (well 
told  by  Lord  Bryce)  of  the  influence  of  the  English  system  upon 
the  law  of  India,  and  the  extent  of  its  penetration  under  the  force 
of  circumstances,  in  spite,  one  may  say,  of  every  effort  of  the 
conquerors  to  hold  it  back.  Not  less  worthy  of  study  too  will 
be  the  imposition  of  the  French  codes  upon  the  countries  con- 


210  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

quered  by  Napoleon,  and  the  conditions  that  secured  their  perma- 
nent survival  in  some  countries  after  the  fall  of  Napoleon  and  the 
withdrawal  of  the  French  legions,  and  their  expulsion  from  others. 
The  Napoleonic  conquests  were  deliberate  attempts  to  spread  a 
culture,  they  therefore  differed  essentially  from  the  growth  of  the 
British  Empire  even  where  the  latter  was  effected  by  conquest. 

Colonization  and  conquest  stand  upon  almost  the  same  plane 
as  far  as  law  is  concerned.  In  this  connection  the  standard  ex- 
ample must  be  that  of  the  British  Empire.  As  a  matter  of  def- 
inite principle,  English  colonization  has  never  aimed  at  the  spread- 
ing of  the  Common  Law ;  and  it  has  spread  by  virtue  of  its  own 
inherent  strength,  and  its  suitability  to  the  surrounding  condi- 
tions. In  the  countries  inhabited  by  savage  tribes  only,  the 
English  colonist,  like  the  barbarian  of  the  Carolingian  epoch, 
or  the  Hindu  or  Mohammedan  of  today,  has  carried  his  law  with 
him  as  a  personal  possession,  but  even  then  he  has  carefully  pre- 
served the  local  customs  of  the  native  inhabitants  so  far  as  they 
did  not  conflict  with  essential  principles  of  civilized  morality. 
In  the  colonies  acquired  by  conquest  or  cession,  where  a  developed 
law  already  exists,  it  has  been  carefully  and  even  jealously  pre- 
served. In  this  way  the  Indian  native  systems  have  been  treated, 
likewise  the  Roman-Dutch  law  in  South  Africa  and  Ceylon,  and 
the  French  in  Lower  Canada.  Nevertheless,  in  these  places, 
in  spite  of  the  efforts  of  administrators  the  laws  came  into  intimate 
contact  with  one  another,  and  once  they  are  in  contact,  the  in- 
evitable ''  struggle  for  life  "  between  the  different  systems  com- 
mences.^ The  story  of  law  in  relation  to  conquest  and  coloniza- 
tion does  not  suffer  from  want  of  material,  but  the  material  is 
scattered  and  uncoordinated. 

§  9.  The  Inertia  of  Law.  In  considering  the  matters  mentioned 
in  the  last  two  or  three  sections  a  sentence  already  quoted  from 
Lyell's  "  Antiquity  of  Man  "  inevitably  occurs  to  the  mind,  and 
suggests  whether  it  can  be  made  the  basis  of  one  of  the  principles 
that  govern  the  relations  of  legal  systems  in  contact.  This  is 
the  sentence :  "  Some  languages  which  are  spoken  by  millions 
and  spread  over  a  wide  area,  will  endure  much  longer  than  others 
which  have  never  had  a  wide  range,  especially  if  the  tendency  to 
incessant  change  in  one  of  these  dominant  tongues  is  arrested  for 
a  time  by  a  standard  literature."^    Substitute  in  this  the  word 

1  Upon  this  subject  Sir  Frederick  Pollock's  lectures  on  **The  Expansion 
of  the  Common  Law"  are  extremely  instructive. 

2 '' Geological  Evidences  of  the  Antiquity  of  Man",  4th  ed.,  p.  513. 


Chap.  VI.]  LAW  AND   GEOGRAPHY  211 

"  law  "  for  the  word  "  language  "  and  it  seems  to  apply  with  little 
qualification.  The  sentence  in  which  Maitland  gives  the  gist  of 
his  explanation  of  the  successful  resistance  of  English  law  to  the 
process  of  Romanization  in  the  16th  century  is  to  much  the  same 
effect.  "  Taught  law  and  law  schools  make  tough  law."  Law 
schools  would  occupy  the  same  place  in  preserving  a  legal  system, 
that  a  standard  literature  would  in  preserving  a  language. 

The  principle  that  we  wish  to  educe  from  this  can  be  provi- 
sionally named  by  a  mechanical  metaphor  "  the  Inertia  of  Law." 
A  body  of  law  that  is  large,  organized,  taught,  that  holds  sway 
over  great  areas  fully  populated,  may  be  slow  to  develop,  may  be 
difficult  to  change,  but  will  be  extremely  persistent.  The  spread 
of  Roman  law  in  the  world  of  classical  antiquity,  and  that  of 
English  law  in  modern  times,  was  partly  due  to  the  fact  that 
both  systems  were  organized,  taught,  and  the  law  of  a  considerable 
body  of  energetic  people ;  and  when  they  came  into  contact  with 
other  less  virile  systems  their  very  momentum  made  them  pre- 
vail. 

Then  in  the  Dark  Ages  when  the  position  was  reversed  and  the 
once  all-conquering  Roman  Empire  w^as  itself  conquered,  the  very 
same  vis  inertiae  preserved  it  from  the  submerging  flood  and  en- 
abled it  to  maintain  its  existence  and  ultimately  to  reextend  its 
dominion  when  a  smaller  system  w^ould  have  utterly  succumbed. 

A  slightly  different  aspect  of  the  same  matter  is  presented  by  the 
United  States.  Many  have  wondered  why  among  such  a  pro- 
gressive and  energetic  people  an  antiquated  criminal  and  an 
even  more  cumbersome  equity  procedure  should  persist  unaltered, 
for  now  nearly  half  a  century,  after  they  have  been  swept  away 
in  the  old  country  from  which  they  were  exported,  and  that  in 
spite  of  the  persistent  activity  in  numerous  directions  of  a  multi- 
tude of  legislative  bodies.  Various  explanations  have  been  given, 
but  one  of  the  reasons  as  we  venture  to  think,  is  that  England  is 
little  and  America  is  big,  and  the  inertia  of  the  large  population 
in  the  huge  country  makes  the  law  infinitely  difficult  to  alter. 

At  the  same  time  this  suggested  generality  must  be  limited  by 
other  considerations.  A  highly  technical  system  of  law,  like  a 
peculiar  and  difficult  language,  will  be  unable  to  exercise  great 
outside  influence,  but  it  will  probably  be  regarded  by  its  pos- 
sessors with  great  affection  and.  if  so,  will  be  extremely  resistant 
to  such  influence.  The  systems  that  spread  must  be  those  that 
contain  a  large  body  of  principles  of  universal  application,  or  they 
will  not  be  fitted  to  exercise  extensive  influence,  and  like  the 


212  FACTORS    OF   LEGAL   EVOLUTION  [Part   II. 

great  universal  languages  they  will  probably  be  equally  receptive 
and  able  to  assimilate  and  digest  useful  rules  from  any  source. 

§  10.  Particular  Legal  Institutions.  Thus  far  we  have  been 
considering  the  possibilities  of  the  application  of  the  geographical 
method  to  legal  systems  taken  as  wholes.  There  is  however  an 
equal  chance  that  its  most  fruitful  results  may  in  the  end  be  ob- 
tained from  a  study  of  the  distribution  of  particular  rules  and 
institutions  and  the  correlation  of  that  distribution  with  other 
factors.  One  instance  that  occurs  at  once  in  this  connection  is 
that  of  systems  of  inheritance  both  as  affecting  movables  and 
land.  The  causes  that  have  governed  the  existence  of  such 
diverse  rules  as  primogeniture,  ultinogeniture,  and  equal  distri- 
bution, have  always  given  rise  to  much  speculation,  but  it  cannot 
be  said  that  the  results  attained  have  been  very  convincing,  except 
to  a  certain  extent  in  the  case  of  primogeniture  as  applied  to  land. 
It  may  be  left  to  the  expositors  of  the  Law  of  Nature  to  say  what 
system  of  inheritance  approaches  most  nearly  to  the  ideal  of 
absolute  justice ;  but  it  is  perfectly  clear  that  schemes  so  utterly 
diverse  must  have  had  their  origin  in  entirely  different  conditions 
of  society,  and  it  is  highly  probable  that  those  social  conditions 
themselves  rested  upon  differences  of  cultivation,  mode  of  life, 
and  so  forth,  that  bore  a  distinct  relation  to  external  conditions. 

To  the  average  civilized  man  of  the  present  day,  the  definite 
legal  preference  of  any  particular  child  whether  first-born  or  last- 
born,  would  at  first  sight  appear  to  be  essentially  unjust,  yet  we 
know  that  even  in  England  for  the  last  three  centuries  primo- 
geniture has  been  maintained  in  relation  to  the  great  landed 
estates,  not  by  any  method  of  legal  compulsion,  but  simply  by  the 
operation  of  strict  family  settlements,  i.e.  it  rested  upon  a  custom 
implicitly  followed  by  the  persons  immediately  concerned. 

A  study  of  the  distribution  of  customs  of  inheritance,  both  testate 
and  intestate,  would  be  a  work  of  enormous  labor,  but  nothing 
would  be  likely  to  throw  more  light  upon  the  whole  course  of  legal 
development. 

Another  field  that  gives  promise  of  considerable  results  is  that 
of  the  influence  of  the  great  trade  routes  upon  the  distribution  of 
legal  rules.  The  law  of  merchants  gradually  fought  its  way  to 
recognition  in  the  legal  systems  of  Europe,  but  only  as  a  result 
of  extreme  pressure.  Even  such  an  adaptable  body  as  the  Eng- 
lish Common  Law  only  received  it  with  difficulty,  and  in  reading 
Blackstone  one  can  see  that  he  did  not  quite  know  what  to  do  with 
it,  —  it  was  somewhat  of  a  misfit,  until  the  genius  of  Lord  Mans- 


Chap.  VI.]  LAW  AND   GEOGRAPHY  213 

field  sewed  up  the  seams  and  ironed  out  the  creases.  There  is 
no  lack  of  learned  monographs  on  the  subject,  but  a  study  of  its 
gradual  progress  century  by  century  illustrated  with  maps  and 
considered  in  relation  to  commercial  progress  and  the  lines  of  the 
trade  routes,  would  be  an  undertaking  of  vast  possibilities. 

Then  again  the  geographical  method  may  be  a  solvent  of  con- 
troversies. Every  student  of  jurisprudence  is  well  acquainted 
with  the  long  dispute  between  Maine  on  the  one  hand  and  Mc- 
Lennan and  others  on  the  other,  as  to  the  Patriarchal  system. 
For  a  long  time  it  was  the  custom  to  decry  the  views  of  Maine  as 
utterly  old  fashioned,  but  later  writers  have  taken  a  juster  view 
of  his  position.  As  Sir  Frederick  Pollock  remarks,^  "  Much  trouble 
and  confusion  might  have  been  saved  if  Maine  had  in  the  first 
place  expressly  confined  his  thesis,  as  for  all  practical  purposes 
it  was  confined,  to  the  Indo-European  family  of  nations  ",  instead 
of  laying  down  that  the  patriarchal  family  was  the  "  primitive  " 
organization  of  mankind  generally.  It  may  be  possible  to  deal 
with  this  intricate  and  difficult  subject  at  greater  length  on  another 
occasion,  but  for  the  present  it  must  be  sujQBcient  to  suggest  that 
the  application  of  the  methods  of  geography  might  be  able  to 
place  the  whole  dispute  upon  another  plane.  If  we  can  establish 
the  fact  that  the  patriarchal  system  is  not  an  inevitable  stage  in 
human  evolution,  much  less  a  '*  primitive  "  state,  but  simply 
the  social  organization  that  results  from  certain  definite  condi- 
tions of  life,  there  would  be  no  controversy  remaining.  The 
position  would  simply  be  that  Maine  had  chosen  his  illustrations 
from  tribes  and  peoples  living  under  these  particular  conditions, 
and  that  Ihs  thesis  was  perfectly  sound  within  such  geographical 
limitations. 

IVIcLennan  chose  his  illustrations  from  times  and  places  where 
these  conditions  did  not  obtain,  and  therefore  drew  different 
conclusions;  but  both  were  probably  wrong  in  affixing  the  name 
'*  primitive  "  to  their  respective  pictures  of  early  society.  The 
settlement  of  this  dispute,  supposing  that  such  a  result  could  be 
attained,  would  of  itself  be  no  small  triumph  for  the  geographical 
method. 

§  11.  Conclusion.  Perhaps  in  bringing  these  few  and  some- 
what random  suggestions  to  an  end,  it  may  not  be  out  of  place 
to  utter  a  word  of  warning.  Some  modern  exponents  of  geog- 
raphy, like  those  of  every  new  or  revived  study,  are  apt  to  put 
forward  claims  on  its  behalf  that  a  more  balanced  judgment  is 
^  Notes  to  "Ancient  Law",  p.  27. 


214  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

unable  to  concede.  The  present  writer  believes  that  it  can  be 
fairly  claimed  on  behalf  of  the  geographic  method  that  it  is  likely 
to  throw  considerable  further  light  upon  many  phases  of  human 
evolution,  and  not  least  upon  the  phases  of  culture  that  are  em- 
bodied in  legal  rules :  but  the  geographical  distribution  of  insti- 
tutions is  only  one  aspect  of  their  history,  and  the  influence  of 
external  conditions  is  only  one  of  these  that  mould  the  life  of  man. 


Chapter  VII 

THE   INFLUENCES   OF   GEOGRAPHIC   ENVIRONMENT 
ON   LAW,    STATE,    AND    SOCIETY  ^ 


§10. 
§11. 

§12. 

§13. 
§14. 


Man  a  Product  of  the  Earth's 
Surface. 

Psychical  Effects. 

People  and  Land. 

Land  Basis  of  Society. 

Morgan's  Societas. 

Land  Bond  in  Hunter  Tribes. 

Land  Bond  in  Fisher  Tribes. 

Land  Bond  in  Pastoral  Socie- 
ties. 

Geographical  Mark  of  Low 
Type  Societies. 

Land  and  the  State. 

Strength  of  the  Land  Bond  in 
the   State. 

Weak  Land  Tenure  of  Hunt- 
ing and  Pastoral  Tribes. 

Land  and  Food  Supply. 

Advance  from  Natural  to  Ar- 
tificial Basis  of  Subsistence. 


§15. 

§16. 
§17. 

§18. 

§19. 

§20. 
§21. 
§22. 
§23. 
§24. 
§25. 
§26. 
§27. 

§28. 


Land  in  Relation  to  Agricul- 
ture. 

Geographic  Checks  to  Progress. 

Native  Animal  and  Plant  Life 
as  Factors. 

Land  Holdings  under  Various 
Cultural  Conditions. 

Density  of  Population  and 
Government. 

Checks  to  Population. 

Artificial  Checks  to  Population. 

Polyandry. 

Infanticide. 

Approved  by  the  State. 

Low  Valuation  of  Human  Life. 

Extra-Territorial  Relations. 

Geography  in  the  Philosophy 
of  History. 

Theory  of  Progress  from  the 
Standpoint  of  Geography. 


§  1.  Man  a  Product  of  the  Earth's  Surface.  Man  is  a  product 
of  the  earth's  surface.  This  means  not  merely  that  he  is  a  child 
of  the  earthy  <lust  of  her  dust ;  but  that  the  earth  has  mothered 
him,  fed  him,  set  him  tasks,  directed  his  thoughts,  confronted 
him  with  difficulties  that  have  strengthened  his  body  and  sharp- 
ened his  wits,  given  him  his  problems  of  navigation  or  irrigation, 
and  at  the  same  time  whispered  hints  for  their  solution.  She  has 
entered  into  his  bone  and  tissue,  into  his  mind  and  soul.  On  the 
mountains  she  has  given  him  leg  muscles  of  iron  to  climb  the  slope ; 
along  the  coast  she  has  left  these  weak  and  flabby,  but  given  him 
instead  vigorous  development  of  chest  and  arm  to  handle  his 
paddle  or  oar.  In  the  river  valley  she  attaches  him  to  the  fertile 
soil,  circumscribes  his  ideas  and  ambitions  by  a  dull  round  of  calm, 
exacting  duties,  narrows  his  outlook  to  the  cramped  horizon  of 

1  (By  Ellex  Churchill  Semple.  Reprinted  from  "  Influences  of  Geo- 
graphic Environment"  (pp.  1,  40,  51,  53-67,  461^65,  67-69  — parts 
omitted),  Henry  Holt  and  Company,  N.  Y.,  1911.] 

215 


216  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

his  farm.  Up  on  the  wind-swept  plateaus,  in  the  boundless 
stretch  of  the  grasslands  and  the  waterless  tracts  of  the  desert, 
where  he  roams  with  his  flocks  from  pasture  to  pasture  and  oasis 
to  oasis,  where  life  knows  much  hardship  but  escapes  the  grind 
of  drudgery,  where  the  watching  of  grazing  herd  gives  him  leisure 
for  contemplation,  and  the  wide-ranging  life  a  big  horizon,  his 
ideas  take  on  a  certain  gigantic  simplicity;  religion  becomes 
monotheism,  God  becomes  one,  unrivaled  like  the  sand  of  the 
desert  and  the  grass  of  the  steppe,  stretching  on  and  on  without 
break  or  change. 


§  2.  Psychical  Effects.  More  varied  and  important  are  the 
psychical  effects  of  geographic  environment.  As  direct  effects 
they  are  doubtless  bound  up  in  many  physiological  modifications ; 
and  as  influences  of  climate,  they  help  differentiate  peoples  and 
races  in  point  of  temperament.  They  are  reflected  in  man's  re- 
ligion and  his  literature,  in  his  modes  of  thought  and  figures  of 
speech.  Blackstone  states  that  *'  in  the  Isle  of  Man,  to  take 
away  a  horse  or  ox  was  no  felony,  but  a  trespass,  because  of  the 
difficulty  in  that  little  territory  to  conceal  them  or  to  carry  them 
off ;  but  to  steal  a  pig  or  a  fowl,  which  is  easily  done,  was  a  capital 
misdemeanour,  and  the  offender  punished  with  death."  The 
judges  or  deemsters  in  this  island  of  fishermen  swore  to  execute 
the  laws  as  impartially  "  as  the  herring's  backbone  doth  lie  in  the 
middle  of  the  fish."  ^ 

******* 

/|  3.  People  and  Land.  Every  clan,  tribe,  state  or  nation  in- 
cludes two  ideas,  a  people  and  its  land,  the  first  unthinkable 
without  the  other.  History,  sociology,  ethnology  touch  only 
the  inhabited  areas  of  the  earth.  These  areas  gain  their  final 
significance  because  of  the  people  who  occupy  them;  their  local 
conditions  of  climate,  soil,  natural  resources,  physical  features 
and  geographic  situation  are  important  primarily  as  factors  in 
the  development  of  actual  or  possible  inhabitants.  A  land  is 
fully  comprehended  only  when  studied  in  the  light  of  its  influence 
upon  its  people,  and  a  people  cannot  be  understood  apart  from 
the  field  of  its  activities.  More  than  this,  human  activities  are 
fully  intelligible  only  in  relation  to  the  various  geographic  condi- 

1  J.  Johnson,  "Jurisprudence  of  the  Isle  of  Man",  pp.  44,  71.  Edin- 
burgh, 1811. 


Chap.   Vn.]  GEOGRAPHIC   ENVIRONMENT  217 

tions  which  have  stimulated  them  in  different  parts  of  the  world. 
The  principles  of  the  evolution  of  navigation,  of  agriculture,  of 
trade,  as  also  the  theory  of  population,  can  never  reach  their 
correct  and  final  statement,  unless  the  data  for  the  conclusions 
are  drawn  from  every  part  of  the  world,  and  each  fact  interpreted 
in  the  light  of  the  local  conditions  whence  it  sprang.  Therefore 
anthropology,  sociology,  and  Ijistory  should  be  permeated  by 
geography. 


§  4.  Land  Basis  of  Society.  Most  systems  of  sociology  treat 
man  as  if  he  were  in  some  way  detached  from^the^rth's  surface ; 
they  ignore  the  land  basis  of  society.  ^  The  anthropo-geographer 
recognizes  the  various  social  forces,  economic  and  psychologic, 
which  sociologists  regard  as  the  cement  of  societies;  but  he  has 
something  to  add.  He  sees  in  the  land  occupied  by  a  primitive 
tribe  or  a  highly  organized  state  the  underlying  material  bond 
holding  society  together,  the  ultimate  basis  of  their  fundamental 
social  activities,  which  are  therefore  derivatives  from  the  land. 
He  sees  the  common  territory  exercising  an  integrating  force,  — 
weak  in  primitive  communities  where  the  group  has  established 
only  a  few  slight  and  temporary  relations  w^ith  its  soil,  so  that 
this  low  social  complex  breaks  up  readily  like  its  organic  counter- 
part, the  low  animal  organism  found  in  an  amoeba;  he  sees  it 
growing  stronger  with  every  advance  in  civilization  involving 
more  complex  relations  to  the  land,  —  with  settled  habitations, 
with  increased  density  of  population,  with  a  discriminating  and 
highly  differentiated  use  of  the  soil,  with  the  exploitation  of  min- 
eral resources,  and  finally  with  that  far-reaching  exchange  of  com- 
modities and  ideas  which  means  the  establishment  of  varied 
extra-territorial  relations.  Finally,  the  modern  society  or  state 
has  grown  into  every  foot  of  its  own  soil,  exploited  its  every  geo- 
graphic advantage,  utilized  its  geographic  location  to  enrich  itself 
by  international  trade,  and  when  possible,  to  absorb  outlying 
territories  by  means  of  colonies.  The  broader  this  geographic 
base,  the  richer,  more  varied  its  resources,  and  the  more  favorable 
its  climate  to  their  exploitation,  the  more  numerous  and  complex 
are  the  connections  which  the  members  of  a  social  group  can  es- 
tablish with  it,  and  through  it  with  each  other ;  or  in  other  words, 
the  greater  may  be  its  ultimate  historical  significance.  The  polar 
regions  and  the  subtropical  deserts,  on  the  other  hand,  permit 
man  to  form  only  few  and  intermittent  relations  with  any  one 


218  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

spot,  restrict  economic  methods  to  the  lower  stages  of  development, 
produce  only  the  small,  weak,  loosely  organized  horde,  which  never 
evolves  into  a  state  so  long  as  it  remains  in  that  retarding  environ- 
ment. 

§  5.  Morgan's  Societas.  Man  in  his  larger  activities,  as  op- 
posed to  his  mere  physiological  or  psychological  processes,  cannot 
be  studied  apart  from  the  land  which  he  inhabits.  Whether  we 
consider  him  singly  or  in  a  group  —  family,  clan,  tribe  or  state 
—  we  must  always  consider  him  or  his  group  in  relation  to  a 
piece  of  land.  The  ancient  Irish  sept.  Highland  clan,  Russian 
mir,  Cherokee  hill-town.  Bedouin  tribe,  and  the  ancient  Helvetian 
canton,  like  the  political  state  oFTiistory,  have  meant  always  a 
group  of  people  and  a  bit  of  land.  The  first  presupposes  the 
second.  In  all  cases  the  form  and  size  of  the  social  group,  the 
nature  of  its  activities,  the  trend  and  limit  of  its  development 
will  be  strongly  influenced  by  the  size  and  nature  of  its  habitat. 
The  land  basis  is  always  present,  in  spite  of  Morgan's  artificial 
distinction  between  a  theoretically  landless  societas,  held  together 
only  by  the  bond  of  common  blood,  and  the  political  civitas  based 
/  upon  land.^  Though  primitive  society  found  its  conscious  bond 
'  in  common  blood,  nevertheless  the  land  bond  was  always  there, 
i  and  it  gradually  asserted  its  fundamental  character  with  the  evo- 
lution of  society. 

The  savage  and  barbarous  groups  which  in  Morgan's  classi- 
fication would  fall  under  the  head,  of  societas  have  nevertheless 
a  clear  conception  of  their  ownership  of  the  tribal  lands  which 
they  use  in  common.  This  idea  is  probably  of  very  primitive 
origin,  arising  from  the  association  of  a  group  with  its  habitat, 
whose  food  supply  they  regard  as  a  monopoly.^  This  is  true  even  of 
migratory  hunting  tribes.  They  claim  a  certain  area  whose  bound- 
aries, however,  are  often  ill-defined  and  subject  to  fluctuations, 
because  the  lands  are  not  held  by  permanent  occupancy  and  cul- 
Xtivation.  An  exceptional  case  is  that  of  the  Shoshone  Indians, 
inhabiting  the  barren  Utah  basin  and  the  upper  valleys  of  the 
Snake  and  Salmon  Rivers,  who  are  accredited  with  no  sense  of 
ownership  of  the  soil.  In  their  natural  state  they  roved  about  in 
small,  totally  unorganized  bands  or  single  families,  and  changed 
their  locations  so  widely,  that  they  seemed  to  lay  no  claim  to  any 
particular  portion.     The  hopeless  sterility  of  the  region  and  its 

^  Lewis  Morgan,  "Ancient  Society",  p.  62.     New  York,  1878. 
2  Franklin  H.  Giddings,  "  Elements  of  Sociology",  p.  247.     New  York, 
1902. 


Chap.   VII.]  GEOGRAPHIC    ENVIRONMENT  219 

poverty  of  game  kept  its  destitute  inhabitants  constantly  on  the 
move  to  gather  in  the  meager  food  supply,  and  often  restricted 
the  social  group  to  the  family.^  Here  the  bond  between  land 
and  tribe,  and  hence  between  the  members  of  the  tribe,  was  the 
weakest  possible. 

§  6.  Land  Bond  in  Hunter  Tribes.  The  usual  type  of  tribal 
ownership  was  presented  by  the  Comanches,  nomadic  horse  J 
Indians  who  occupied  the  grassy  plains  of  northern  Texas.  They  : 
held  their  territory  and  the  game  upon  it  as  the  common  property 
of  the  tribe,  and  jealously  guarded  the  integrity  of  their  domain. ^ 
The  chief  Algonquin  tribes,  who  occupied  the  territory  between 
the  Ohio  River  and  the  Great  Lakes,  had  each  its  separate  domain, 
within  which  it  shifted  its  villages  every  few  years ;  but  its  size 
depended  upon  the  power  of  the  tribe  to  repel  encroachment ^^ 
upon  its  hunting  grounds.  Relying  mainly  on  the  chase  and 
fishing,  little  on  agriculture,  for  their  subsistence,  their  relations 
to  their  soil  were  superficial  and  transitory,  th^r  tribal  organi- 
zation in  a  high  degree  unstable.^  Students  of  American  eth- 
nology generally  agree  that  most  of  the  Indian  tribes  east  of  the 
Mississippi  were  occupying  definite  areas  at  the  time  of  the  dis- 
covery, and  were  to  a  considerable  extent  sedentary  and  agri- 
cultural. Though  nomadic  within  the  tribal  territory,  as  they 
moved  with  the  season  in  pursuit  of  game,  they  returned  to  their 
villages,  w^hich  were  shifted  only  at  relatively  long  intervals.^ 

The  political  organization  of  the  native  Australians,  low  as  they 
were  in  the  social  scale,  seems  to  have  been  based  chiefly  on  the  I 
claim  of  each  wretched  wandering  tribe  to  a  definite  territory.^  J 
In  north  central  Australia,  where  even  a  very  sparse  population 
has  sufficed  to  saturate  the  sterile  soil,  tribal  boundaries  have 
become  fixed  and  inviolable,  so  that  even  war  brings  no  transfer 
of  territory.  Land  and  people  are  identified.  The  bond  is 
cemented  by  their  primitive  religion,  for  the  tribe's  spirit  ances- 
tors occupied  this  special  territory.^    In  a  like  manner  a  very 

1  Schoolcraft,  "  The  Indian  Tribes  of  the  United  States  ",  Vol.  I,  pp. 
198-200,  224.     Philadelphia,  1853. 

» Ibid.,  Vol.  I,  pp.  231-232,  241. 

«  Roosevelt,  "  The  Winning  of  the  West",  Vol.  I,  pp.  70-73,  88.  New 
York,  1895. 

*  McGee  and  Thomas,  "  Prehistoric  North  America",  pp.  392-393,  408, 
Vol.  XIX,  of  "  History  of  North  America  ",  edited  by  Francis  W.  Thorpe, 
Philadelphia,  1905.  "Eleventh  Census  Report  on  the  Indians",  p.  51. 
Washington,  1894. 

5  Hans  Helmolt,  "  History  of  the  World",  Vol.  II,  pp.  249-250.  New 
York,  1902-1906. 

«  Spencer  and  Gillen,  "Northern  Tribes  of  Central  Austraha",  pp.  13- 
15.     London,  1904. 


220  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

r  definite  conception  of  tribal  ownership  of  land  prevails  among  the 
'  Bushmen  and  Bechuanas  of  South  Africa;    and  to  the  pastoral 
Hereros  the  alienation  of  their  land  is  inconceivable.-^ 

A  tribe  of  hunters  can  never  be  more  than  a  small  horde,  because 
the  simple,  monotonous  savage  economy  permits  no  concentra- 
tion of  population,  no  division  of  labor  except  that  between  the 
sexes,  and  hence  no  evolution  of  classes.  The  common  economic 
level  of  all  is  reflected  in  the  simple  social  organization,^  which 
necessarily  has  little  cohesion,  because  the  group  must  be  pre- 
pared to  break  up  and  scatter  in  smaller  divisions,  when  its  mem- 
bers increase  or  its  savage  supplies  decrease  even  a  little.  Such 
primitive  groups  cannot  grow  into  larger  units,  because  these 
would  demand  more  roots  sent  down  into  the  sustaining  soil; 
but  they  multiply  by  fission,  like  the  infusorial  monads,  and 
thereafter  lead  independefnt  existences  remote  from  each  other. 
This  is  the  explanation  of  multiplication  of  dialects  among  savage 
tribes. 

§  7.  Land  Bond  in  Fisher  Tribes.  Fishing  tribes  have  their 
chief  occupation  determined  by  their  habitats,  which  are  found 
along  well  stocked  rivers,  lakes,  or  coastal  fishing  grounds.  Con- 
ditions here  encourage  an  early  adoption  of  sedentary  life,  dis- 
courage wandering  except  for  short  periods,  and  facilitate  the 
introduction  of  agriculture  wherever  conditions  of  climate  and 
soil  permit.  Hence  these  fisher  folk  develop  relatively  large  and 
permanent  social  groups,  as  testified  by  the  ancient  lake-villages 
^of  Switzerland,  based  upon  a  concentrated  food-supply  resulting 
from  a  systematic  and  often  varied  exploitation  of  the  local  re- 
sources. The  cooperation  and  submission  to  a  leader  necessary 
in  pelagic  fishing  often  gives  the  preliminary  training  for  higher 
political  organization.^  All  the  primitive  stocks  of  the  Brazilian 
Indians,  except  the  mountain  Ges,  are  fishermen  and  agriculturists ; 
hence  their  annual  migrations  are  kept  within  narrow  limits. 
'Each  linguistic  group  occupies  a  fixed  and  relatively  well  defined 
district.^  Stanley  found  along  the  Con^o  large  permanent  vil- 
lages of  the  natives,  who  were  engaged  in  fishing  and  tilling  the 
fruitful  soil,  but  knew  little  about  the  country  ten  miles  back 

1  Ratzel,  "History  of  Mankind",  Vol.  I,  p.  126.     London,  1896-1898. 

2  Roscher,  "  National-Oekonomik  des  Ackerbaues  ",  p.  24.  Stuttgart, 
1888. 

^Ratzel,  "History  of  Mankind",  Vol.  I,  p.  131.  London,  1896- 
1898. 

4  Paul  Ehrenreich,  "  Die  Einteilung  und  Verbreitung  der  Volkerstamme 
Brasiliens",  Peterman's  "  Geographische  Mittheilungen  ",  Vol.  XXXVII, 
p.  85.     Gotha,  1891. 


Chap.   VII.]  GEOGRAPHIC   ENVIRONMENT  221 

from  the  river.     These  two  generous  means  of  subsistence  aren 
everywhere  combined  in  Polynesia,  Micronesia  and  Melanesia; 
there  they  are  associated  with  dense  populations  and  often  with 
advanced  political  organization,  as  we  find  it  in  the  feudal  mon- 
archy of  Tonga  and  the  savage  Fiji  Islands.^     Fisher  tribes,  there- 
fore, get  an  early  impulse  forward  in  civilization ;  ^  and  even 
where  conditions  do  not  permit  the  upward  step  to  agriculture, 
these  tribes  have  permanent  relations  with  their  land,  form  stable 
social  groups,  and  often  utilize  their  location  on  a  natural  highway 
to  develop   systematic  trade.     For  instance,   on  the  northwest 
coast  of  British  Columbia  and  Southern  Alaska,  the  Haida,  Tlingit 
and  Tsimshean  Indians  have  portioned  out  all  the  land  about 
their  seaboard  villages  among  the  separate  families  or  households 
as  hunting,  fishing,  and  berrying  grounds.     These  are  regarded 
as  private  property  and  are  handed  down  from  generation  to   ^ 
generation.     If  they  are  used  by  anyone  other  than  the  owner,    - 
the  privilege  must  be  paid  for.     Every  salmon  stream  has  its^ 
proprietor,  whose  summer  camp  can  be  seen  set  up  at  the  point   j 
where  the  run  of  the  fish  is  greatest.     Combined  with  this  private 
property  in  land  there  is  a  brisk  trade  up^  and  down  the  coast, 
and  a  tendency  toward  feudalism  in  the  village  communities, 
owing  to  the  association  of  power  and  social  distinction  with  wealth 
and  property  in  land.^ 

§  8.  Land  Bond  in  Pastoral  Societies.  Among  pastoral  nomads, 
among  whom  a  systematic  use  of  their  territory  begins  to  appear, 
and  therefore  a  more  definite  relation  between  land  and  people, 
we  find  a  more  distinct  notion  than  among  wandering  hunters 
of  territorial  ownership,  the  right  of  communal  use,  and  the  dis- 
tinct obligation  of  common  defense.  Hence  the  social  bond  is 
drawn  closer.  The  nomad  identifies  himself  with  a  certain  dis- 
trict, which  belongs  to  his  tribe  by  tradition  or  conquest,  and  has 
its  clearly  defined  boundaries.  Here  he  roams  between  its  summer 
and  winter  pastures,  possibly  one  hundred  and  fifty  miles  apart, 
visits  its  small  arable  patches  in  the  spring  for  his  limited  agri- 
cultural ventures,  and  returns  to  them  in  the  fall  to  reap  their 
meager  harvest.  Its  springs,  streams,  or  wells  assume  enhanced 
value,  are  things  to  be  fought  for,  owing  to  the  prevailing  aridity 
of  summer;    while  the  ownership  of  a  certain  tract  of  desert  or 

^  Roscher,  "  National-Oekonomik  des  Ackerbaues",  p.  26,  Note  5. 
Stuttgart,  1888. 

2  Ibid.,  p.  27. 

'  Albert  Niblack,  "  The  Coast  Indians  of  Southern  Alaska  and  Northern 
British  Columbia",  pp.  298-299,  304,  337-339.     Washington,  1888. 


222  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

grassland  carries  with  it  a  certain  right  in  the  bordering  settled 
district  as  an  arCa  of  plunder.^ 

The  Kara-Kir gh is  stock,  who  have  been  located  since  the 
sixteenth  century  on  Lake  Issik-Kul,  long  ago  portioned  out  the 
land  among  the  separate  families,  and  determined  their  limits 
by  natural  features  of  the  landscape.^  Sven  Hedin  found  on  the 
Tarim  River  poles  set  up  to  mark  the  boundary  between  the  Shah- 
yar  and  Kuchar  tribal  pastures.^  John  de  Piano  Carpini,  travel- 
ing over  southern  Russia  in  1246,  immediately  after  the  Tartar 
conquest,  found  that  the  Dnieper,  Don,  Volga  and  Ural  rivers 
were  all  boundaries  between  domains  of  the  various  millionaries 
or  thousands,  into  which  the  Tartar  horde  was  organized.'*  The 
population  of  this  vast  country  was  distributed  according  to  the 
different  degrees  of  fertility  and  the  size  of  the  pastoral  groups.^ 
Volney  observed  the  same  distinction  in  the  distribution  of  the 
Bedouins  of  Syria.  He  found  the  barren  cantons  held  by  small, 
widely  scattered  tribes,  as  in  the  Desert  of  Suez;  but  the  cul- 
tivable cantons,  like  the  Hauran  and  the  Pachalic  of  Aleppo, 
closely  dotted  by  the  encampments  of  the  pastoral  owners.^ 

The  large  range  of  territory  held  by  a  nomadic  tribe  is  all  suc- 
cessively occupied  in  the  course  of  a  year,  but  each  part  only  for 
a  short  period  of  time.  A  pastoral  use  of  even  a  good  district 
necessitates  a  move  of  five  or  ten  miles  every  few  weeks.  The 
whole,  large  as  it  may  be,  is  absolutely  necessary  for  the  annual 
support  of  the  tribe.  Hence  any  outside  encroachment  upon  their 
territory  calls  for  the  united  resistance  of  the  tribe.  This  joint 
or  social  action  is  dictated  by  their  common  interest  in  pastures 
and  herds.  The  social  administration  embodied  in  the  apportion- 
ment of  pastures  among  the  families  or  clans  grows  out  of  the 
systematic  use  of  their  territory,  which  represents  a  closer  rela- 
tion between  land  and  people  than  is  found  among  purely  hunting 
tribes.  Overcrowding  by  men  or  livestock,  on  the  other  hand, 
puts  a  strain  upon  the  social  bond.  When  Abraham  and  Lot, 
typical  nomads,  returned  from  Egypt  to  Canaan  with  their  large 
flocks  and  herds,   rivalry  for  the  pastures  occasioned  conflicts 

1  Ratzel,  "  History  of  Mankind  ",  Vol.  Ill,  p.  173.     London,  1896-1898. 

2  Ibid.,  Vol.  Ill,  pp.  173-174. 

3  Sven  Hedin,  "  Central  Asia  and  Tibet",  Vol.  I,  p.  184.  New  York 
and  London,  1903. 

^  John  de  Piano  Carpini,  **  Journey  in  1246",  p.  130.  Hakluyt 
Society,  London,  1904. 

6  "Journey  of  William  de  Rubruquis  in  1253",  p.  188.  Hakluyt 
Society,  London,  1903. 

8  Volney,  quoted  in  Malthus,  "Principles  of  Population",  Chap.  VII, 
p.  60.     London,  1878. 


Chap.   Vn.]  GEOGRAPHIC   ENVIRONMENT  223 

among  their  shepherds,  so  the  two  sheiks  decided  to  separate. 
Abraham  took  the  hill  pastures  of  Judea,  and  Lot  the  plains  of 
Jordan  near  the  settled  district  of  Sodom.^ 

§  9.  Geographical  Mark  of  Low  T3^e  Societies.  The  larger 
the  amount  of  territory  necessary  for  the  support  of  a  given 
number  of  people,  whether  the  proportion  be  due  to  permanent 
poverty  of  natural  resources  as  in  the  Eskimo  country,  or  to  re- 
tarded economic  development  as  among  the  Indians  of  primitive 
America  or  the  present  Sudanese,  the  looser  is  the  connection 
between  land  and  people,  and  the  lower  the  type  of  social  organi- 
zation. For  such  groups  the  organic  theory  of  society  finds  an 
apt  description.  To  quote  Spencer,  "  The  original  clusters, 
animal  and  social,  are  not  only  small,  but  they  lack  density. 
Creatures  of  low  type  occupy  large  spaces  considering  the  small 
quantity  of  animal  substance  they  contain ;  and  low-type  socie- 
ties spread  over  areas  that  are  wide  relatively  to  the  number  of 
their  component  individuals."  ^  In  common  language  this  means 
small  tribes  or  even  detached  families  sparsely  scattered  over 
wide  areas,  living  in  temporary  huts  or  encampments  of  tepees 
and  tents  shifted  from  place  to  place,  making  no  effort  to  modify 
the  surface  of  the  land  beyond  scratching  the  soil  to  raise  a  nig- 
gardly crop  of  grain  or  tubers,  and  no  investment  of  labor  that 
might  attach  to  one  spot  the  sparse  and  migrant  population. 

§  10.  Land  and  State.  The  superiority  over  this  social  type 
of  the  civilized  state  lies  in  the  highly  organized  utilization  of  its 
whole  geographic  basis  by  the  mature  community,  and  in  the 
development  of  government  that  has  followed  the  increasing  den- 
sity of  population  and  multiplication  of  activities  growing  out 
of  this  manifold  use  of  the  land.  Sedentary  agriculture,  which 
forms  its  initial  economic  basis,  is  followed  by  industrialism  and 
commerce.  The  migratory  life  presents  only  limited  accumula- 
tion of  capital,  and  restricts  narrowly  its  forms.  Permanent 
settlement  encourages  accumulation  in  every  form,  and  under 
growing  pressure  of  population  slowly  reveals  the  possibilities  of 
every  foot  of  ground,  of  every  geographic  advantage.  These 
are  the  fibers  of  the  land  which  become  woven  into  the  whole 
fabric  of  the  nation's  life.  These  are  the  geographic  elements 
constituting  the  soil  in  which  empires  are  rooted ;  they  rise  in  the 
sap  of  the  nation. 

^  Genesis,  xiii,  1-12. 

^Herbert  Spencer,  •'Principles  of  Sociology",  Vol.  I,  p.  457.  New 
York. 


224  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

§  11.  Strength  of  the  Land  Bond  in  the  State.  The  geographic 
basis  of  a  state  embodies  a  whole  complex  of  physical  conditions 
which  may  influence  its  historical  development.  The  most  potent 
of  these  are  its  size  and  zonal  location;  its  situation,  whether 
continental  or  insular,  inland  or  maritime,  on  the  open  ocean  or 
an  inclosed  sea ;  its  boundaries,  whether  drawn  by  sea,  mountain, 
desert  or  the  faint  demarking  line  of  a  river;  its  forested  moun- 
tains, grassy  plains,  and  arable  lowlands ;  its  climate  and  drainage 
system  ;  finally,  its  equipment  with  plant  and  animal  life,  whether 
indigenous  or  imported,  and  its  mineral  resources.  When  a  state 
has  taken  advantage  of  all  its  natural  conditions,  the  land  becomes 
a  constituent  part  of  the  state,^  modifying  the  people  which  in- 
habit it,  modified  by  them  in  turn,  till  the  connection  between 
the  two  becomes  so  strong  by  reciprocal  interaction,  that  the 
people  cannot  be  understood  apart  from  their  land.  Any  attempt 
to  divide  them  theoretically  reduces  the  social  or  political  body 
to  a  cadaver,  valuable  for  the  study  of  structural  anatomy  after 
the  method  of  Herbert  Spencer,  but  throwing  little  light  upon  the 
vital  processes. 

§  12.  Weak  Land  Tenure  of  Hunting  and  Pastoral  Tribes.  A 
people  who  makes  only  a  transitory  or  superficial  use  of  its  land  has 
'upon  it  no  permanent  or  secure  hold.  The  power  to  hold  is  meas- 
ured by  the  power  to  use ;  hence  the  weak  tenure  of  hunting  and 
pastoral  tribes.  Between  their  scattered  encampments  at  any 
given  time  are  wide  interstices,  inviting  occupation  by  any  settlers 
who  know  how  to  make  better  use  of  the  soil.  This  explains 
the  easy  intrusion  of  the  English  colonists  into  the  sparsely  ten- 
anted territory  of  the  Indians,  of  the  agricultural  Chinese  into  the 
pasture  lands  of  the  Mongols  beyond  the  Great  Wall,  of  the 
American  pioneers  into  the  hunting  grounds  of  the  Hudson  Bay 
Company  in  the  disputed  Oregon  country.^  The  frail  bonds 
which  unite  these  lower  societies  to  their  soil  are  easily  ruptured 
and  the  people  themselves  dislodged,  while  their  land  is  appro- 
priated by  the  intruder.  But  who  could  ever  conceive  of  dis- 
lodging the  Chinese  or  the  close-packed  millions  of  India?  A 
modern  state  with  a  given  population  on  a  wide  area  is  more  vul- 
nerable than  another  of  like  population  more  closely  distributed ; 
but  the  former  has  the  advantage  of  a  reserve  territory  for  future 

^  Heinrich  von  Treitschke,  "Politik",  Vol.  I,  pp.  202-204.  Leipzig, 
1897. 

2  E^  (7^  Semple,  "  American  History  and  Its  Geographic  Conditions  ", 
pp.  206-207.     Boston,  1903. 


Chap.   \^I.]  GEOGRAPHIC   ENVIRONMENT  225 

growth.^  This  was  the  case  of  Kursachsen  and  Brandenburg 
in  the  sixteenth  century,  and  of  the  United  States  throughout 
its  history.  But  beside  the  danger  of  inherent  weakness  before 
attack,  a  condition  of  relative  underpopulation  always  threatens 
a  retardation  of  development.  Easy-going  man  needs  the  prod 
of  a  pressing  population. 

§  13.  Land  and  Food  Supply.  Food  is  the  urgent  and  recurrent 
need  of  individuals  and  of  society.  It  dictates  their  activities 
in  relation  to  their  land  at  every  stage  of  economic  development, 
fixes  the  locality  of  the  encampment  or  village,  and  determines  the 
size  of  the  territory  from  which  sustenance  is  drawn.  The  length 
of  residence  in  one  place  depends  upon  whether  the  springs  of  its 
food  supply  are  perennial  or  intermittent,  while  the  abundance 
of  their  flow  determines  how  large  a  population  a  given  piece  of 
land  can  support. 

§  14.  Advance  from  Natural  to  Artificial  Basis  of  Subsistence. 
Hunter  and  fisher  folk,  relying  almost  exclusively  upon  what  their 
land  produces  of  itself,  need  a  large  area  and  derive  from  it  only  an 
irregular  food  supply,  which  in  winter  diminishes  to  the  verge  of 
famine.  The  transition  to  the  pastoral  stage  has  meant  the  sub- 
stitution of  an  artificial  for  a  natural  basis  of  subsistence,  and 
therewith  a  change  which  more  than  any  other  one  thing  has  in- 
augurated the  advance  from  savagery  to  civilization.^  From  the 
standpoint  of  economics,  the  forward  stride  has  consisted  in  the 
application  of  capital  in  the  form  of  flocks  and  herds  to  the  task 
of  feeding  the  wandering  horde ;  ^  from  the  standpoint  of  alimen- 
tation, in  the  guarantee  of  a  more  reliable  and  generally  more 
nutritious  food  supply,  which  enables  population  to  grow  more 
steadily  and  rapidly ;  from  the  standpoint  of  geography,  in  the 
marked  reduction  in  the  per  capita  amount  of  land  necessary  to 
yield  an  adequate  and  stable  food  supply.   .   .   . 

§  15.  Land  in  Relation  to  Agriculture.  With  transition  to 
the  sedentary  life  of  agriculture,  society  makes  a  further  gain 
over  nomadism  in  the  closer  integration  of  its  social  units,  due  to 
permanent  residence  in  larger  and  more  compjex  g|^oups;  in  the 
continuous  release  of  labor  from  the  task  of  mere  food-getting 
for  higher  activities,  resulting  especially  in  the  rapid  evolution  of 

1  Roscher,  "  Grundlagen  des  National-Oekonomie  ",  Book  VI.     *'  Bevol- 
kerung",  p.  694,  note  5.     Stuttgart,  1886. 

2  Edward  John  Payne,  **  History  of  the  New  World  Called  America", 
Vol.  I,  pp.  303-313.     Oxford  and  New  York,  1892. 

'  Roscher,  "  National-Oekonomik  des  Ackerbaues  ",  pp.  31,  52.  Stutt- 
gart, 1888. 


226  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

the  home;  and  finally  in  the  more  elaborate  organization  in  the 
use  of  the  land,  leading  to  economic  differentiation  of  different 
localities  and  to  a  rapid  increase  in  the  population  supported  by 
a  given  area,  so  that  the  land  becomes  the  dominant  cohesive 
force  in  society. 


§  16.  Geographic  Checks  to  Progress.  The  desultory,  inter- 
mittent, extensive  use  of  the  land  practiced  by  hunters  and  nomads 
tends,  under  the  growing  pressure  of  population,  to  pass  into  the 
systematic,  continuous,  intensive  use  practiced  by  the  farmer, 
except  where  nature  presents  positive  checks  to  the  transition. 
The  most  obvious  check  consists  in  adverse  conditions  of  climate 
and  soil.  Where  agriculture  meets  insurmountable  obstacles  like 
the  intense  cold  of  Arctic  Siberia  and  Lapland,  or  the  alkaline 
soils  of  Nevada  and  the  Caspian  Depression,  or  the  inadequate 
rainfall  of  Mongolia  and  Central  Arabia,  the  land  can  produce  no 
higher  economic  and  social  groups  than  pastoral  hordes.  Hence 
shepherd  folk  are  found  in  their  purest  types  in  deserts  and  steppes 
where  conditions  early  crystallized  in  social  form  and  checked 
development. 

§  17.  Native  Animal  and  Plant  Life  as  Factors.  Adverse  condi- 
tions of  climate  and  soil  are  not  the  only  factors  in  this  retardation. 
The  very  unequal  native  equipment  of  the  several  continents 
with  plant  and  animal  forms  likely  to  accelerate  the  advance  to 
nomadism  and  agriculture  also  enters  into  the  equation.  In 
Australia,  the  lack  of  a  single  indigenous  mammal  fit  for  domesti- 
cation and  of  all  cereals  blocked  from  the  start  the  pastoral  and 
agricultural  development  of  the  natives.  Hence  at  the  arrival 
of  the  Europeans,  Australia  presented  the  unique  spectacle  of  a 
whole  continent  with  its  population  still  held  in  the  vise  of  nature. 
The  Americas  had  a  limited  variety  of  animals  susceptible  of 
domestication,  but  were  more  meagerly  equipped  than  the  Old 
World.  Yet  the  Eskimo  failed  to  tame  and  herd  the  reindeer, 
though  their  precarious  food-supply  furnished  a  motive  for  the 
transition.  Moreover,  an  abundance  of  grass  and  reindeer  moss 
(Cladonia  rangiferind) ,  and  congenial  climatic  conditions  favored 
it  especially  for  the  Alaskan  Eskimo,  who  had,  besides,  the  near-by 
example  of  the  Siberian  Chukches  as  reindeer  herders.^  The 
buffalo,  whose  domesticability  has  been  proved,  was  never  utilized 

^  Sheldon  Jackson,  *'  Introduction  of  Domesticated  Reindeer  into 
Alaska",  pp.  20,  25-29,  127-129.     Washington,  1894. 


Chap.   VII.]  GEOGRAPHIC   ENVIRONMENT  227 

in  this  way  by  the  Indians,  though  the  Spaniard  Gomara  writes 
of  one  tribe,  living  in  the  sixteenth  century  in  the  southwestern 
part  of  what  is  now  United  States  territory,  whose  chief  wealth 
consisted  in  herds  of  tame  buffalo.^  North  America,  at  the  time 
of  the  discovery,  saw  only  the  dog  hanging  about  the  lodges  of 
the  Indians ;  but  in  South  America  the  llama  and  alpaca,  confined 
to  the  higher  levels  of  the  Andes  (10,000  to  15,000  feet  elevation) 
were  used  in  domestic  herds  only  in  the  mountain-rimmed  valleys 
of  ancient  Peru,  where,  owing  to  the  restricted  areas  of  these  inter- 
montane  basins,  stock-raising  early  became  stationary,^  as  we  find 
it  in  the  Alps. 


§  18.  Land  Holdings.  Every  advance  to  a  higher  state  of 
civilization  has  meant  a  progressive  decrease  in  the  amount  of 
land  necessary  for  the  support  of  the  individual,  and  a  progressive 
increase  in  the  relations  between  man  and  his  habitat.  The  stage 
of  social  development  remaining  the  same,  the  per  capita  amount 
of  land  decreases  also  from  poorer  to  better  endowed  geographical 
districts,  and  with  every  invention  which  brings  into  use  some  natu- 
ral resource. 


§  19.  Density  of  Population  and  Government.  With  every 
increase  of  the  population  inhabiting  a  given  area,  and  with  the 
consequent  multiplication  and  constriction  of  the  bonds  uniting 
society  with  its  land,  comes  a  growing  necessity  for  a  more  highly 
organized  government,  both  to  reduce  friction  within  and  to  secure 
to  the  people  the  land  on  which  and  by  which  they  live.  There- 
fore protection  becomes  a  prime  function  of  the  state.  It  wards 
off  outside  attack  which  may  aim  at  acquisition  of  its  territory, 
or  an  invasion  of  its  rights,  or  curtailment  of  its  geographical 
sphere  of  activity.  The  modern  industrial  state,  furthermore, 
with  the  purpose  of  strengthening  the  nation,  assists  or  itself 
undertakes  the  construction  of  highways,  canals,  and  railroads, 
and  the  maintenance  of  steamship  lines.  These  encourage  the 
development  of  natural  resources  and  of  commerce,  and  hence 
lay  the  foundation  for  an  increased  population,  by  multiplying 
the  relations  between  land  and  people. 

^  Quoted  in  Alexander  von  Humboldt,  "  Aspects  of  Nature  in  Different 
Lands",  pp.  62,  139.     Philadelphia,  1849. 

2  Edward  John  Payne,  *'  History  of  the  New  World  Called  America", 
Vol.  I,  pp.  311-321,  333-354,  364-366.     New  York,  1892. 


228  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

§  20.  Checks  to  Population.  If  a  state  lacks  the  energy  and 
national  purpose  for  territorial  expansion,  and  accepts  its  bound- 
aries as  final,  the  natural  increase  of  population  upon  a  fixed  area 
produces  an  increased  density,  unless  certain  social  forces  counter- 
act it.  Without  these  forces,  the  relation  of  men  to  the  land  would 
have  tended  to  modify  everywhere  in  the  same  way.  Increase 
in  numbers  would  have  been  attended  by  a  corresponding  decrease 
in  the  amount  of  land  at  the  disposal  of  each  individual.  Those 
states  which,  like  Norway  and  Switzerland,  cannot  expand  and 
which  have  exploited  their  natural  resources  to  the  utmost,  must 
resign  themselves  to  the  emigration  of  their  redundant  population. 
But  those  which  have  remained  within  their  own  boundaries 
and  have  adopted  a  policy  of  isolation,  like  China,  feudal  Japan, 
during  its  two  and  a  half  centuries  of  seclusion,  and  numerous 
Polynesian  islands,  have  been  forced  to  war  with  nature  itself 
by  checking  the  operation  of  the  law  of  natural  increase.  All 
the  repulsive  devices  contributing  to  this  end,  whether  infanticide, 
abortion,  cannibalism,  the  sanctioned  murder  of  the  aged  and  in- 
firm, honorable  suicide,  polyandry  or  persistent  war,  are  the  social 
deformities  consequent  upon  suppressed  growth.  Such  artificial 
checks  upon  population  are  more  conspicuous  in  natural  regions 
with  sharply  defined  boundaries,  like  islands  and  oases,  as  Malthus 
observed ;  ^  but  they  are  visible  also  among  savage  tribes  whose 
boundaries  are  fixed  not  by  natural  features  but  by  the  mutual  re- 
pulsion and  rivalry  characterizing  the  stage  of  development,  and 
whose  limit  of  population  is  reduced  by  their  low  economic  status. 

§  21.  Artificial  Checks  to  Population.  While  emigration  draws 
off  the  surplus  population,  there  tend  to  develop  in  islands,  as 
also  in  barren  highlands  where  population  early  reaches  the  point 
of  saturation,  various  devices  to  restrict  natural  increase.  The 
evils  of  congestion  are  foreseen  and  guarded  against.  Abbe 
Raynal,  writing  of  islanders  in  general,  remarked  as  far  back  as 
1795,  "It  is  among  these  people  that  we  trace  the  origin  of  that 
multitude  of  singular  institutions  which  retards  the  progress  of  popu- 
lation." .  .  .  Malthus,  in  his  Essay  on  Population,  commenting 
on  this  statement,  notes  that  the  bounds  to  the  number  of  inhabit- 
ants on  islands,  especially  small  ones,  are  so  narrow  and  so  obvious 
that  no  one  can  ignore  them.^ 

1  Malthus,  ••Principles  of  Population",  chapters  v  and  vii.  London, 
1878. 

2  Malthus,  ••  Essay  on  Population",  Book  I,  chap,  v,  p.  67.  London, 
1826.  This  whole  chapter  on  ••  Checks  to  Population  in  the  Islands  of 
the  South  Seas  "  is  valuable. 


Chap.   VH.]  GEOGRAPHIC   ENVIRONMENT  229 

The  checks  to  population  practiced  on  islands  are  either  pre- 
ventive or  positive.  The  extreme  measure  to  restrict  marriage 
is  found  among  the  wretched  Budumas  who  inhabit  the  small, 
marshy  islands  of  Lake  Chad.  Tribal  custom  allows  cnly  the 
chiefs  and  headmen  to  have  wives.  A  brass  crescent  inserted 
in  the  ear  of  a  boy  indicates  the  favored  one  among  a  chief's  sons 
destined  to  carry  on  his  race.  For  his  brothers  this  is  made 
physically  impossible;  they  become  big,  dull,  timid  creatures 
contributing  by  their  fishing  to  the  support  of  the  thinly  populated 
villages.  The  natives  of  the  Shari  River  delta  on  the  southern 
shore  of  Lake  Chad  use  Budiima  as  a  term  of  contempt  for  a 
man.^ 

§  22.  Polyandry.  In  islands,  as  in  unproductive  highlands 
where  hunger  stalks  abroad,  marriage  readily  takes  the  form  of 
polyandry.  On  the  Canary  Islands,  at  the  time  of  their  conquest 
in  1402,  polyandry  existed  in  Lancerote  and  possibly  in  Fuerte Ven- 
tura, often  assigning  cne  woman  to  three  husbands;  but  in  the 
other  islands  of  the  group  monogamy  was  strictly  maintained.^ 
In  Oceanica  polygamy,  monogamy  or  polyandry  prevails  ac- 
cording to  a  man's  means,  the  poverty  of  the  islands,  and  the 
supply  of  women.  A  plurality  of  wives  is  always  the  privilege 
of  the  chiefs  and  the  wealthy,  but  all  three  forms  of  marriage 
may  be  found  on  the  same  island.  Scarcity  of  women  gives  rise 
to  polyandry  in  Tahiti,^  and  consigns  one  woman  to  four  or  five 
^  men.  In  old  Hawaii,  where  there  were  four  or  five  men  to  one 
woman,  a  kind  cf  incipient  polyandry  arose  by  the  addition  of  a 
countenanced  paramour  to  the  married  couple's  establishment.^ 
Robert  Louis  Stevenson  found  the  same  complaisant  arrangement 
a  common  one  in  the  Marquesas,  where  the  husband's  deputy 
was  designated  by  the  term  of  pikio  in  the  native  vocabulary.^ 
Polyandry  existed  in  Easter  Isle,  among  whose  stunted  and  des- 
titute population  the  men  far  exceeded  the  women,  and  children 
were  few,  according  to  reports  of  the  early  visitors.^  Numerous 
other  instances  make  this  connection  between  island  habitat, 

1  Boyd  Alexander,  *•  From  the  Niger  to  the  Nile  ",  Vol.  II,  pp.  108-110. 
London, 1907. 

2  *'  History  of  the  Conquest  of  the  Canaries ",  p.  xxxix.  Hakluyt 
Society,  London,  1872. 

'  Ratzel,  "History  of  Mankind",  Vol.  I,  pp.  273,  299-300.  London, 
1890-98. 

*  Ibid.,  Vol.  I,  pp.  270,  274-275.  Adolf  Marcuse,  "Die  Hawaiischen 
Inseln",  p.  108.     Berlin,  1894. 

^  R.  L.  Stevenson,  "  The  South  Seas",  pp.  138-139.     New  York,  1903. 

8  George  Forster,  "  Voyage  Round  the  World",  Vol.  I,  p.  564,  569,  572, 
577,  584,  580,  596.     London,  1777. 


230  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

deficiency  of  women,  need  of  checking  increase,  and  polyandrous 
marriages  an  obvious  one.^ 

§  23.  Infanticide.  This  disproportion  of  the  sexes  in  Oceanica 
is  due  to  the  murder  of  female  infants,  too  early  child-bearing, 
overwork,  privation,  licentiousness,  and  the  violence  of.  the  men.^ 
The  imminence  of  famine  dictates  certain  positive  checks  to  popu- 
lation among  which  infanticide  and  abortion  are  widespread  in 
Oceanica.  In  some  parts  of  the  New  Hebrides  and  the  Solomon 
groups  it  is  so  habitual,  that  in  some  families  all  children  are  killed 
and  substitutes  purchased  at  will.^  In  the  well-tilled  Fiji  Islands, 
a  pregnant  girl  is  strangled  and  her  seducer  slain.  The  women 
make  a  practice  of  drinking  medicated  waters  to  produce  sterility. 
Failing  in  this,  the  majority  kill  their  children  either  before  or 
after  birth.  In  the  island  of  Vanua  Levu  infanticide  reaches 
from  one-half  to  two-thirds  of  all  children  conceived ;  here  it  is 
reduced  to  a  system  and  gives  employment  to  professional  mur- 
derers of  babies,  who  hover  like  vultures  over  every  child-bed. 
All  destroyed  after  birth  are  females.^  And  yet  here,  as  on  many 
other  islands  of  Melanesia  and  Polynesia,  such  offspring  as  are 
spared  are  treated  with  foolish  fondness  and  indulgence.^  The 
two  facts  are  not  incompatible. 

§  24.  Approved  by  the  State.  Geographic  conditions  made 
infanticide  a  state  measure  in  these  crowded  communities.  On 
the  small  coral  atolls,  where  the  food  supply  was  scantest,  it  was 
enforced  by  law.  On  Vaitupu,  in  the  Ellice  group,  only  two  chil- 
dren were  allowed  to  a  couple ;  on  Nukufelau,  only  one.  Any 
violation  of  this  unique  sumptuary  law  was  punished  by  a  fine.^ 
On  the  congested  Gilbert  atolls,  a  woman  rarely  had  more  than 
two  children,  never  more  than  three.  Abortion,  produced  by  a 
regular  midwife,  disposed  of  any  subsequent  offspring.  Affec- 
tion for  children  was  very  strong  here,  and  infanticide  of  the  living 
was  unknown.^  In  Samoa,  also,  Turner  found  the  practice  re- 
stricted to  the  period  before  birth;  but  in  Tahiti  and  elsewhere 
was  enforced  by  the  tribal  village  authorities  on  the  born  and  un- 

1  Westermarck,  *'  History  of  Human  Marriage",  pp.  116,  441,  462-463, 
450-452,  454,  457.     London,  1891. 

2  Ratzel,  "  History  of  Mankind",  Vol.  I,  p.  270.     London,  1896-1898. 

3  R.  H.  Codrington,  "  The  Melanesians",  p.  229.     Oxford,  1891. 

^  Basil  Thomson,  "The  Fijians",  pp.  221-227.  London,  1908;  Wil- 
lianis  and  Calvert,  "  Fiji  and  the  Fijians  ",  pp.  132,  142.     New  York,  1859. 

6  Ibid.,  p.  130.  R.  L.  Stevenson,  "  The  South  Seas  ",  pp.  38,  40.  New 
York,  1903. 

«  Ibid.,  p.  38. 

^  J.  S.  Jenkins,  *'  United  States  Exploring  Squadron  under  Capt. 
Wilkes",  1838-1842,  pp.  404-405.     New  York,  1855. 


Chap.   VII.]  GEOGRAPHIC   ENVIRONMENT  231 

born.^  In  pre-Christian  Hawaii,  two-thirds  of  all  children,  and 
especially  girls,  were  killed  by  their  parents  either  before  or  after 
birth.  The  result  was  a  decay  of  the  maternal  instinct  and  the 
custom  of  farming  out  children  to  strangers.  This  contributed 
to  the  excess  of  infant  mortality,  the  degeneration  of  morals  and 
the  instability  of  the  family .^  So  in  Japan  the  pressure  of  popu- 
lation led  to  infanticide  and  the  sale  of  daughters  to  a  life  of  ig- 
nominy, which  took  them  out  of  the  child-bearing  class. ^  Nor 
was  either  custom  under  the  ban. 


§  25.  Low  Valuation  of  Human  Life.  The  constant  pressure 
of  population  upon  the  limits  of  subsistence  throughout  Oceanica 
has  occasioned  a  low  valuation  of  human  life.  Among  natural 
peoples  the  helpless  suffer  first.  The  native  Hawaiians,  though 
a  good-natured  folk,  were  relentless  towards  the  aged,  weak, 
sick,  and  insane.  These  were  frequently  stoned  to  death  or 
allowed  to  perish  of  hunger."*  In  Fiji,  the  aged  are  treated  with 
such  contempt,  that  when  decrepitude  or  illness  threatens  them, 
they  beg  their  children  to  strangle  them,  unless  the  children 
anticipate  the  request.^  In  Vate  (or  Efate)  of  the  New  Hebrides, 
eld  people  are  buried  alive,  and  their  passage  to  another  world 
duly  celebrated  by  a  feast.^  However,  in  the  Tonga  Islands 
and  in  New  Zealand,  great  respect  and  consideration  are  shown 
the  aged  as  embodying  experience.^  The  harsher  custom  recalls 
an  ancient  law  of  Aegean  Ceos,  which  ordained  that  all  persons 
over  sixty  years  of  age  should  be  compelled  to  drink  hemlock,  in 
order  that  there  might  be  sufficient  food  for  the  rest.^ 

§  26.  Extra-territorial  Relations.  There  is  a  great  difference 
between  those  states  whose  inhabitants  subsist  exclusively  from 
the  products  of  their  own  country  and  those  which  rely  more  or 
less  upon  other  lands.  Great  industrial  states,  like  England  and 
Germany,  which  derive  only  a  portion  of  their  food  and  raw 

1  Ratzel, "  History  of  Mankind",  Vol.  I,  pp.  270, 299.   London,  1896-1898. 

2  Adolf  Marcuse,  "Die  Hawaiischen  Inseln",  p.  109.     Berlin,  1894. 

^  G.  W.  Knox,  "Japanese  Life  in  Town  and  Country",  p.  188.  New 
York,  1905. 

*  Adolf  Marcuse,  "Die  Hawaiischen  Inseln",  p.  109.     Berlin,  1894. 

5  Williams  and  Calvert,  "  Fiji  and  the  Fijians ",  pp.  144-146.  New 
York.  1859. 

8  Ratzel,  "  History  of  Mankind  ",  Vol.  I,  p.  330.     London,   1896-1898. 

'  William  Mariner,  "Natives  of  the  Tonga  Islands",  Vol.  II,  pp.  95, 
134-135.  Edinburgh,  1827 ;  "  Capt.  Cook's  Journal,  First  Voyage  Round 
the  World  in  the  Endeavor",  1768-1771,  pp.  220-221.  Edited  by  W.  J. 
L.  Wharton.     London,   1893. 

*  Strabo,  Book  X,  chap,  v,  6. 


232  FACTORS    OF    LEGAL   EVOLUTION  [PArt  II. 

material  from  their  own  territory,  supply  their  dense  populations 
through  international  trade.  Interruption  of  such  foreign  com- 
merce is  disastrous  to  the  population  at  home;  hence  the  state 
by  a  navy  protects  the  lines  of .  communication  with  those  far- 
away lands  of  wheat  fields  and  cattle  ranch.  This  is  no  purely 
modern  development.  Athens  in  the  time  of  Pericles  used  her 
navy  not  only  to  secure  her  political  domination  in  the  Aegean, 
but  also  her  connections  with  the  colonial  wheat  lands  about  the 
Euxine. 

The  modern  state  strives  to  render  this  circle  of  trade  both 
large  and  permanent  by  means  of  commercial  treaties,  customs- 
unions,  trading-posts  and  colonies.     Thus  while  society  at  home 
is  multiplying  its  relations  with  its  own  land,  the  state  is  enabling 
it  to  multiply  also  its  relations  with  the  whole  producing  world. 
While  at  home  the  nation  is  becoming  more  closely  knit  together 
through  the  common  bond  of  the  fatherland,  in  the  world  at  large 
humanity  is  evolving  a  brotherhood  of  man  by  the  union  of  each 
with  all  through  the  common  growing  bond  of  the  earth.     Hence 
we  cannot  avoid  the  question :    Are  we  in  process  of  evolving  a 
social   idea  vaster  than  that  underlying  nationality?     Do  the 
Socialists  hint  to  us  the  geographic  basis  of  this  new  development, 
when  they  describe  themselves  as  an  international  political  party  ? 
§  27.    Geography  in  the   Philosophy  of   History.     It  is  natural 
that  the  old  philosophy  of  history  should  have  fixed  its  attention 
upon  the  geographic  basis  of  historical  events.     Searching  for  the 
permanent  and  common  in  the  outwardly  mutable,  it  found  always 
at  the  bottom  of  changing  events  the  same  solid  earth.     Biology 
has  had  the  same  experience.     The  history  of  the  life  forms  of  the 
world  leads  always  back  to  the  land  on  which  that  life  arose, 
spread,  and  struggled  for  existence.     The  philosophy  of  history 
was  superior  to  early  sociology,  in  that  its  method  was  one  of 
historical  comparison,  which  inevitably  guided  it  back  to  the  land 
as  the  material  for  the  first  generalization.     Thus  it  happens  that 
the  importance  of  the  land  factor  in  history  was  approached  first 
from  the  philosophical  side.     Montesquieu  and  Herder  had  no 
intention   of   solving   sociological   geographical    problems,    when 
they  considered  the  relation  of  peoples  and  states  to  their  soil ; 
they  wished  to  understand  the  purpose  and  destiny  of  man  as  an 
inhabitant  of  the  earth. 

§  28.  Theory  of  Progress  from  the  Standpoint  of  Geography. 
The  study  of  history  is  always,  from  one  standpoint,  a  study  of 
progress.     Yet   after  all   the   century-long  investigation   of  the 


Cnxv.   VII.]  GEOGRAPHIC   ENVIRONMENT  233 

history  of  every  people  working  out  its  destiny  in  its  given  en- 
vironment, struggling  against  the  difficulties  of  its  habitat,  pro- 
gressing when  it  overcame  them  and  retrograding  when  it  failed, 
advancing  when  it  made  the  most  of  its  opportunities  and  de- 
clining when  it  made  less  or  succumbed  to  an  invader  armed  with 
better  economic  or  political  methods  to  exploit  the  land,  it  is 
amazing  how  little  the  land,  in  which  all  activities  finally  root, 
has  been  taken  into  account  in  the  discussion  of  progress.  Never- 
theless, for  a  theory  of  progress  it  offers  a  solid  basis.  From  the 
standpoint  of  the  land,  social  and  political  organizations,  in  suc- 
cessive stages  of  development,  embrace  ever  increasing  areas, 
and  make  them  support  ever  denser  populations ;  and  in  this 
concentration  of  population  and  intensification  of  economic  de- 
velopment they  assume  ever  higher  forms.  It  does  not  suffice 
that  a  people,  in  order  to  progress,  should  extend  and  multiply 
only  its  local  relations  to  its  land.  This  would  eventuate  in 
arrested  development,  such  as  Japan  showed  at  the  time  of  Perry's 
visit.  The  ideal  basis  of  progress  is  the  expansion  of  the  world 
relations  of  a  people,  the  extension  of  its  field  of  activity  and  sphere  of 
influence  far  beyond  the  limits  of  its  own  territory,  by  which  it  ex- 
changes commodities  and  ideas  with  various  countries  of  the  world. 
Universal  history  shows  us  that,  as  the  geographical  horizon  of 
the  known  world  has  widened  from  gray  antiquity  to  the  present, 
societies  and  states  have  expanded  their  territorial  and  economic 
scope  ;  that  they  have  grown  not  only  in  the  number  of  their  square 
miles  and  in  the  geographical  range  of  their  international  inter- 
course, but  in  national  efficiency,  power,  and  permanence,  and 
especially  in  that  intellectual  force  which  feeds  upon  the  nutri- 
tious food  of  wide  comparisons.  Every  great  movement  which 
has  widened  the  geographical  outlook  of  a  people,  such  as  the 
Crusades  in  the  Middle  Ages,  or  the  colonization  of  the  Americas, 
has  applied  an  intellectual  and  economic  stimulus.  The  expand- 
ing field  of  advancing  history  has  therefore  been  an  essential 
concomitant  and  at  the  same  time  a  driving  force  in  the  progress 
of  every  people  and  of  the  world. 


B.  — ECONOMIC    FACTORS 

Chapter  VIII 
ECONOMIC  FOUNDATIONS  OF  LAW^ 


I.    The  Economic  Basis  of  Legal 

Sanctions. 
II.    The  Economic  Basis  of  Legal 
Transformations  —  an  His- 
torical Demonstration. 


III.    The  Economic  Basis  of  Di- 
vers Legal  Institutions. 


I.    The  Economic  Basis  of  Legal  Sanctions 

When  we  come  to  consider  the  legal  characteristics  of  the  final 
economy,  we  find  the  law  reduced  to  a  set  of  imperati^ve  rules, 
designed  to  protect  the  different  producers  in  the  enjoyment  of 
the  results  of  their  labor,  and  in  the  accumulation  of  its  prod- 
ucts. But,  inasmuch  as  it  is  to  every  one's  interest  in  this  economy 
to  respect  the  property  of  others,  the  law  never  has  to  apply  its 
own  penalties,  since  no  one  would  ever  think  of  violating  it.  Or 
if  it  were  ever  necessary  to  resort  to  legal  penalties,  it  could  only 
be  against  madmen  or  fools;  for  nothing  less  than  aberration  or 
insanity  could  possibly  impel  any  one  to  commit  illegal  acts  that 
clashed  with  his  own  interests. 

Locke's  proposition :  where  there  is  no  property  there  is  no  in- 
justice, is  as  capable  of  demonstration  as  those  of  Euclid;  for 
[the  idea  of  property  being  a  right  to  something,  and  the  idea 
we  designate  under  the  name  of  injustice  being  the  invasion  or 
violation  of  such  a  right,  it  is  clear  that  the  latter  cannot  exist 
without  the  former]  But  it  is  not  necessary  to  go  so  far  as  to 
assume  the  non-existence  of  property  in  order  to  show  the  im- 
possibility of  injustice;   for  \mder  an  adequate  system  of  private 

1  [By  AcHiLLE  LoRiA.  From  the  second  French  edition,  translated  by 
Lindley  M.  Keasby,  London,  Swan  Sonnenschein  and  Company,  Lim., 
1899,  pp.  73-114.  The  title  of  the  translated  volume  is  "Economic  Foun- 
dations of  Society."  The  work  translated  is  entitled  "  Les  Bases  econo- 
miques  de  la  Constitution  sociale."] 

234 


CrL\p.   Vm.]  ECONOMIC   FOUNDATIONS   OF   LAW  235 

property,  any  violation  of  the  rights  of  another  would  be  in  con- 
tradiction with  the  self-interest  of  the  transgressor,  since,  as  we 
have  already  seen,  it  would  necessarily  react  to  his  own  disad- 
vantaged No  violation  of  another's  property  rights  could  occur 
in  a  society  made  up  of  producers  of  capital  and  ordinary  laborers 
all  having  equal  incomes ;  for  any  attempt  on  the  part  of  one 
member  of  the  group  to  usurp  the  rights  of  another  could  only 
succeed  in  driving  the  latter  to  disrupt  the  mixed  association. 
This,  in  turn*,  would  result  in  lessening  the  joint  productivity 
labor,  and  so  diminish  the  income  of  the  would-be  usurper. 
In  such  a  community,  the  law  would  therefore  simply  consist  in 
the  theoretical  affirmation  of  the  rights  and  duties  of  the  indi- 
vidual, and  these  would  never  have  to  be  incorporated  into  penal 
sanctions.  Utility,  which  according  to  Hobbes  constitutes  the 
essence  of  the  law  in  the  state  of  nature,  would  then  form  the  sole 
rule  of  justice;  but,  instead  of  leading  to  the  war  of  all  against 
all,  this  criterion  would  naturally  and  logically  result  in  the  re- 
spect of  reciprocal  rights  and  in  social  peace. 

The  logic  of  this  conclusion  comes  out  with  still  greater  clear- 
ness in  the  argument  drawn  e  contrario  from  the  legal  character- 
istics of  the  economic  form  radically  opposed  to  the  above ;  namely, 
the  capitalistic  economy.  It  is  evident  that  the  law  which  as- 
sures to  every  individual  the  peaceful  enjoyment  of  his  income  is 
no  longer  so  sure  of  universal  observance  in  a  community  that 
tolerates,  sanctions,  and  even  accentuates  economic  inequality, 
and  where  one  portion  of  the  population  grows  rich  at  the  expense 
of  the  other ;  foi/Tt  is  to  the  interest  of  those  who  possess  less  to 
usurp  the  rights  of  those  who  possess  more,  and  those  who  labor 
without  receiving  any  revenue  have  certainly  everything  to  gain 
from  violating  the  law  and  appropriating  the  revenue  of  the 
capitalists  and  non-laboring  proprietors/I  And  although  in  the 
free-land  economy  violations  of  the  law  are  powerless  to  augment 
the  welfare  of  the  agent,  and  in  the  end  only  succeed  in  diminish- 
ing his  prosperity,  where  land  is  pre-empted  such  illegal  acts 
constitute,  on  the  contrary,  a  very  efficacious  means  of  increasing 
the  transgressor's  competency.  For  this  reason,  the  law  can  no 
longer  confine  itself,  in  this  phase  of  economic  evolution,  to  a 
mere  theoretical  affirmation  of  the  economic  privileges  of  the 
individual,  but  must  arm  itself  with  rigorous  penalties  to  l^-y 
upon  those  whose  individual  interests  urge  them  to  violate  its 
rules. 

In  the  capitalistic  society,  the  real  interests  of  the  laborers  urge 


236  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

them  to  revolt  against  the  capitalistic  class,  while  the  conscious 
interests  of  the  members  of  this  capitalistic  group  lead  them  to 
resort  to  reciprocal  usurpation  among  themselves,  and  to  be 
implacable  in  their  attitude  toward  the  laboring  population, 
although  such  conduct  really  results  to  their  ultimate  disad- 
vantage. For  this  reason,  as  we  have  seen,  i^e  ethics  of  egoism 
cannot,  under  such  conditions,  lead  to  social  equilibrium,  and 
it  is,  therefore,  necessary  to  resort  to  an  imperative  code  of  morals/l 
with  a  view  to  vitiating  the  egoism  of  both  classes  by  creating 
an  ostensible  egoism  calculated  to  detach  the  poorer  classes  from 
their  real  interests  and  the  well-to-do  classes  from  their  conscious 
interests.  In  cases  where  this  perversion  of  egoism  is  not  complete 
in  its  results,  and  where,  on  this  account,  the  imperative  code  of 
morality  does  not  of  itself  suffice  to  assure  social  equilibrium, 
the  law  intervenes.  Instead  of  vitiating  human  egoism,  and 
then  allowing  the  individual  to  act  freely  according  to  the  tenets 
of  his  perverted  interests,  the  law  proceeds  either  by  absolutely 
forbidding  acts  that  are  in  conformity  with  one's  own  interest, 
or  by  subjecting  such  acts  to  penalties  so  severe  that  their  per- 
formance becomes  henceforth  anti-egoistic.  Morality  thus  comes 
to  the  support  of  the  capitalistic  system  by  means  of  a  fiction; 
for,  even  while  permitting  the  individual  to  follow  out  his  own 
inclinations,  it  takes  care  to  vitiate  his  egoism  and  direct  it  in  a 
sense  opposed  to  his  interests,  real  or  conscious  as  the  case  may 
be.  The  law  proceeds  more  explicitly  and  imposes  at  once  so 
severe  a  penalty  upon  the  egoistic  act  that  its  performance  really 
becomes  contrary  to  the  agent's  interest.  Morality  imposes  an 
ostensible  penalty  upon  him  who  commits  an  egoistic  act  and 
thus  renders  the  abstention  therefrom  apparently  egoistic;  while 
the  law,  on  the  contrary,  inflicts  its  effective  punishment  upon 
the  self-same  act  and  thus  renders  the  abstention  really  egoistic. 
/Morality  accordingly  vitiates  our  interests,  while  the  law,  on  the 
other  hand,  alters  the  conditions  under  which  they  are  moved  and 
determineHl 

This  characteristic  of  the  law  has  been  vaguely  comprehended 
by  the  more  illustrious  writers  on  jurisprudence;  but  their  ig- 
norance of  the  economic  element  has  always  prevented  them 
from  grasping  the  true  nature  of  the  institutions  of  which  we  are 
speaking.  Thus  Jhering  regards  the  law  as  a  compulsion  ex- 
ercised upon  individuals  by  the  collective  authority,  with  a 
view  to  deterring  them  from  excesses  that  would  turn  to  their 
own   disadvantage,  which  they  themselves  are  unable  to  fore- 


Chap.  VIII.]  ECONOMIC   FOUNDATIONS   OF   LAW  237 

see.^  This  definition,  indeed,  exactly  describes  the  characteristics 
of  the  law  in  so  far  as  it  applies  to  the  relations  existing  between 
the  members  of  the  capitalistic  group,  upon  whom  the  law  actually 
imposes  a  series  of  acts  that  are  in  conformity  with  their  real  in- 
terests ;  but  it  is  not  applicable  to  matters  concerning  the  laborers, 
for  they  are  obliged  by  law  to  act  contrary  to  their  real  egoism.  In 
the  secondplace,.this  definition  takes  no  account  of  the  anomalous 
fact  thatlmdividuals  have  to  be  constrained  to  act  in  conformity 
with  their  own  interests;  and  it  fails  to  see  that  this  contradic- 
tion must  necessarily  be  the  result  of  an  abnormal  and  transitory 
economic  system,  under  which  acts  that  are  in  reality  useful  do 
not  appear  so  to  the  individual  and  must,  therefore,  be  dictated 
by  some  superior  force.  If,  however,  we  turn  aside  for  a  moment 
from  the  capitalistic  economy  and  fij^  our  attention  again  on  the 
final  economic  form,  we  will  perceive  that,  owing  to  the  trans- 
parent nature  of  the  prevailing  social  relations,  the  individual  is 
there  able  to  recognize  immediately  the  personal  advantages 
and  disadvantages  resulting  from  the  different  acts  he  performs. 
A  spontaneous  fulfillment  of  the  egoistic  act  is  thus  assured,  and 
there  is  no  longer  any  reason  for  psychological  absurdity  of  its 
enforcement. 

From  all  this  it  will  be  readily  recognized  that  the  legal  system 
is  much  more  complicated  than  the  moral  code.  Morality,  in 
short,  requires  no  special  institutions  to  guarantee  its  observance 
since  it  is  left  to  the  persuasions  of  conscience.  But  the  law, 
on  the  other  hand,  demands  a  whole  series  of  institutions  to  secure 
its  fulfillment.  Morality,  besides,  depends  upon  the  work  of 
a  relatively  restricted  number  of  unproductive  laborers  whose 
business  It  is  to  preach  moderation  to  the  masses  and  the  elite 
of  society ;  while  the  law,  on  the  contrary,  employs  a  triple  army 
of  unproductive  laborers :  one  branch  to  formulate  the  principles 
of  justice,  another  to  carry  out  these  principles  into  practice, 
and  the  third  to  assure  their  execution ;  that  is  to  say,  there  must 
be  jurists,  judges  and  police.  From  this  we  must  conclude  that 
the  law  is  a  phenomenon  belonging  to  a  more  advanced  stage  of 
social  evolution  than  morality,  since  it  is  a  more  complex  and 
heterogeneous  institution,  corresponding  to  a  more  highly  de- 
veloped system  of  capitalistic  civilization.  It  is  also  a  more 
costly  system,  and  one  to  which  capital  only  has  recourse  after 

^Jhering,  "Zweck  im  Recht",  Leipzig,  1877-83,  i.,  p.  250. 
[See  Husik's  translation,  under  the  title,  "Law  as  a  Means  to  an 
End",  "Modern  Legal  Philosophy  Series",  Vol.  V.] 


238  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

it  has  experienced  the  inefficacy  of  the  less  expensive  methods 
of  safeguarding  the  persistence  of  property.^  ^_ 

Thus,  as  a  coactive  and  imperative  instruction,  jthe  law  is 
likewise  a  necessary  product  of  the  capitalistic  economy,  serving 
to  protect  the  income-holders  from  their  ^wn  importunities  and 
from  attacks  on  the  side  of  the  laborers.y  It  becomes  thus  at 
once  the  complement  and  the  integration  of  capitalistic  morality, 
wherever  the  latter  proves  insufficient. 

This  organic  connection  between  the  application  of  the  legal 
sanction  and  the  institution  of  capitalistic  property  finds  its 
proof  in  the  entire  history  of  the  law.  During  the  long  period 
preceding  the  institution  of  the  capitalistic  regime  legal  penalties 
were  never  incorporated  into  material  acts,  and  the  purely  ab- 
stract nature  of  the  legal  system  finally  gave  rise  to  the  theoreti- 
cal illusion  that  a  law  could  exist  without  its  corresponding  sanc- 
tion. As  a  matter  of  fact,  however  ,(ialaw  deprived  of  its  material 
sanction  is  plainly  an  impossibility,  since  the  essential  character- 
istic of  the  law,  and  that  which  distinguishes  it  from  morality, 
consists  in  just  this  material  penalty .(  But  though  Athere  cannot 
be  a  law  without  the  existence  of  a  corresponding  sanction,]  one 
may  still  admit  the  possibility  of  a  law  without  the  exercise  of  its 
sanction,  provided  economic  circumstances  render  it  feasible  to 
dispense  with  the  necessity  of  resorting  thereto.  Now,  just  such 
circumstances  are  to  be  met  with  in  an  economy  where  equality 
of  conditions  prevails.  Under  such  circumstances  the  applica- 
tion of  the  legal  sanction  is  rendered  superfluous  by  the  fact  that 
acquiescence  in  the  law  is  to  every  one's  interest.  Under  such 
conditions  the  law  simply  amounts  to  a  technical  classification 
of  the  acts  and  abstentions  that  are  to  be  the  advantage  of  the 
citizens  of  the  State ;  and,  on  this  account,  respect  for  the  law  is 
assured  on  the  part  of  such  citizens  without  the  necessity  of  apply- 
ing any  penalties.  Thus  there  is  nothing  extraordinary  in  the 
fact,  that  the  primitive  tribunals  were  simply  courts  of  arbitration 
which  left  their  verdict  to  the  voluntary  execution  of  the  parties. 
The  sanction  becoming  thus  purely  theoretical,  it  ended  in  being 
no  longer  even  the  object  of  a  threat. 

1  The  opposite  thesis  is  upheld  by  Pellegrini,  who  regards  morahty  as 
the  integration  of  the  law,  and  considers  it  accordingly  as  a  later  develop- 
ment in  the  evolution  of  social  ideas  ("  Diritto  sociale,"  1891,  p.  14).  But 
this  is  wrong;  for  the  very  rigidity,  precision  and  complexity  which  are 
the  special  characteristics  of  the  law,  of  themselves  denote  it  to  be  a 
more  advanced  institution  than  morality,  and  mark  it  as  belonging  to  a 
later  stage  of  human  development. 

2  CJ.  Vanni,  "GH  studi  di  Sir  H.  Maine",  1892,  p.  46. 


Chap.  VHI.]  ECONOMIC   FOUNDATIONS   OF   LAW  239 

It  is  thus  easy  to  explain  how  the  non-exercise  of  legal  penal- 
ties during  this  social  period  came  to  encourage  the  belief  in  the 
non-existence  of  such  penalties,  and  consequently  caused  the 
jurist  to  imagine  the  possibility  of  the  existence  of  a  law  without 
its  corresponding  sanction.  The  matter  is  also  explicable  from 
the  fact  that  the  non-exercise  of  the  legal  sanction  continued  even 
after  the  conditions  of  economic  equality  that  first  rendered  this 
state  of  things  possible  ceased  to  exist.  The  non-exercise  of  the 
legal  sanction  for  so  protracted  a  period,  resulted,  in  fact,  in  the 
atrophy  of  the  social  organs  whose  function  it  was  to  apply  it. 
Thus  at  the  outset  of  the  capitalistic  regime  the  sanction  was  but 
imperfectly  applied,  because  the  necessary  organs  were  still  inert 
or  imperfectly  developed. 

The  pcgal  sanction  was  for  this  reason  inadequate  ^  during  the 
early  days  of  capitalistic  society,  and  primitive  legislators  had, 
therefore,  according  to  Maine's  profound  observation,  to  accord 
to  procedure  an  importance  that  seems  to  us  out  of  all  proportion, 
as  modern  legislators  throw  the  prescriptions  of  procedure  into 
the  background.  '  In  early  times  the  legislator  had,  indeed,  to 
exert  every  effort  to  assure  the  rigidity  of  the  legal  sanction 
and  to  repair  the  insufficiency  resulting  from  its  practical  disuse. 
This  very  inadequacy  of  the  legal  sanction  during  so  protracted 
a  period  was,  indeed,  the  cause  both  of  its  frequent  violation  and 
of  its  employment  by  private  citizens.  The  revolts  against  the 
constituted  judicial  authority  occurring  during  the  Middle  Ages 
and  even  in  our  day  in  some  of  the  less  civilized  countries  —  the 
camorra  and  the  maffia  —  are  striking  examples  of  the  systematic 
violation  of  the  legal  sanction.  On  the  other  hand,  we  find  no 
less  remarkable  examples  of  its  employment  by  private  citizens 
in  the  vendetta,  so  common  during  the  Middle  Ages  and  still  actually 
in  vogue  in  certain  countries,  and  in  the  application  of  lynch-law 
in  the  United  States.  These  two  lines  of  phenomena,  so  diametri- 
cally opposed  to  each  other,  are  both  but  the  necessary  products 
of  a  legal  sanction  that  is  inadequate  in  itself  and  imperfectly 
applied  by  the  collective  authority.  It  is  only  after  the  course 
of  ages  and  with  a  constant  improvement  in  its  use  that  the  ap- 
plication of  the  legal  sanction  becomes  certain.  Rebellion  then 
becomes  more  rare,  and  obedience  to  the  law  more  regular.  Thus 
beginning  with  that  spontaneous  submission  to  the  law,  arising 
from  conditions  of  economic  equality  which  made  such  conduct 
conformable  to  the  natural  interests  of  the  agent,  we  reach  a 
*  Cf.  Maine,  "Ancient  Law",  a^n^Vanni,  "Maine",  p.  61  ff. 


240  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

reflex  obedience  which  is  the  product,  not  of  natural  egoism,  but 
of  the  infalHbiHty  of  legal  penalties,  which  in  turn  assures  the 
requisite  transformation  of  egoism  demanded  by  the  property 
system. 

If  the  law  then  constitutes  the  sanction  that  society,  or  more 
strictly,  its  ruling  classes,  accords  to  existing  economic  condi- 
tions, it  must  then  of  necessity  reflect  these  same  conditions,  and 
docilely  follow  in  the  train  of  their  successive  transformations. 
iThe  law,  in  other  words,  proceeds  from  the  economic  constitution 
and  changes  as  it  changes J  The  theory  of  Savigny  and  the  his- 
torical school,  which  regards  the  law  as  the  product  of  the  national 
conscience,  or  the  result  of  the  peculiar  inheritance  and  habits 
of  a  people,  is  thus  entirely  erroneous.  On  the  contrary,  the 
legal  systems  of  the  most  widely  separated  races  and  nations 
must  be  the  same  whenever  the  prevailing  economic  conditions 
are  identical.  On  the  other  hand,  every  nation  must  undergo 
a  change  in  its  legal  system  when  the  onward  march  of  its  civiliza- 
tion has  brought  about  radical  changes  in  its  economic  constitution. 

II.    The  Economic  Basis  of  Legal  Transformations  —  an  Historical 

Demonstration 

Changes  in  the  prevailing  economic  conditions  necessarily 
involve  corresponding  alterations  in  the  law.  This  is  a  truth 
that  is  evident  from  what  we  have  already  said,  and  the  history 
of  law  furnishes  us,  besides,  with  clear  and  definite  demonstra- 
tion of  the  fact.  From  the  early  dawn  of  juristic  life,  during 
that  primitive  period  when  the  law  was  worked  out  upon  a  family 
and  not  upon  a  property  basis,  mother-right  prevailed  among  the 
most  profoundly  different  peoples,  and  in  the  most  widely  separated 
places.  The  maternal  family,  with  its  complicated  system  of 
relationships,  flourished  alike  in  Asia,  Greece,  and  Africa,  as  well 
as  in  prehistoric  America.  When  we  come  down  to  times  that  are 
less  obscure  and  to  facts  that  are  more  definite,  we  are  again 
struck  with  amazement  at  the  profound  similarity  in  the  legal 
systems  prevailing  among  the  most  different  peoples  during  these 
early  historical  periods.  We  know,  as  a  matter  of  fact,  that  the 
ancient  laws  of  the  Romans,  the  Irish,  the  Gauls,  and  the  Germans 
were  practically  the  same,  or  presented  but  imperceptible  diver- 
gences. Among  these  different  peoples  the  law  shows  us  the  same 
classification  of  persons,  the  same  absolute  character  of  marital 
and  paternal  authority,  a  like  constitution  of  the  family  and  an 


Chap.   \1II.]  ECONOMIC   FOUNDATIONS   OF  LAW  241 

identical  distinction  between  the  ager  publicus  and  the  ager  privatus. 
/In  each  of  these  countries  the  law  maintained  thej  inviolability 
of  private  propert}^  determined  the  boundaries  of  the  patrimo- 
nial fields,  proclaimed  the  personal  nature  of  an  obligation  and 
fixed  the  rigorous  bonds  that  *  shackled  the  liberty  of  the  debtor 
and  transformed  the  security  pledged  into  a  right  of  propertyTl 
In  all  four  cases,  finally,  the  law  insisted  upon  respect  for  the 
sacredness  of  the  oath,  accorded  ample  confidence  to  the  witness, 
and  arranged  for  the  intervention  of  judicial  warranties.^ 

Germanic  law,  it  is  true,  founded  property  rights  in  the  family, 
while  Roman  law  accorded  such  rights  to  the  individual ;  but  in 
the  primitive  Roman  law  there  are  also  many  traces  of  the  earlier 
family  community.  That  so  striking  an  analogy  should  exist 
in  the  legal  systems  of  two  peoples  so  profoundly  different  and 
so  widely  separated  is  a  highly  significant  fact  and  one  worthy 
of  serious  consideration;  on  the  one  hand  because  it  radically 
reverses  the  theory  that  regards  the  law  as  an  emanation  of  the 
national  consciousness,  and  on  the  other  hand  because  it  shows 
that  the  law  necessarily  depends  upon  existing  economic  con- 
ditions. The  Romans  and  the  primitive  Germans  were  profoundly 
different  in  race  and  manners  and  lived  under  different  climatic 
conditions.  Between  these  two  peoples  and  these  two  lands 
there  was,  indeed,  nothing  in  common  beyond  the  identity  of  their 
economic  systems ;  or,  to  put  it  more  definitely,  there  was  nothing 
in  common  between  them  except  identical  territorial  conditions, 
which  irresistibly  impelled  them  to  adopt  an  identical  economic 
constitution.  It  is  perfectly  evident  that  this  profound  analogy 
in  the  legal  systems  of  these  two  peoples  could  not  have  been 
the  product  of  conditions  wherein  they  differed,  and  must,  ac- 
cordingly, have  resulted  from  the  one  element  common  to  them 
both,  namely :   their  economic  system. 

Thus  the  Roman  economy  and  the  German  economy  proceeded 
together  for  a  certain  time  at  about  equal  paces  along  the  lines 
of  their  respective  development.  But  after  the  collective  economy 
gave  place  to  the  system  of  capitalistic  property,  based  upon  the 
suppression  of  the  free  land,  their  ways  lay  apart ;  for  Germany's 
free  land,  being  of  a  low  grade  of  fertility,  could  be  taken  from  the 
laborer  without  resorting  to  very  serious  violence,  while  in  South- 
ern Europe,  on  the  contrary,  where  the  land  was  of  an  exuberant 
fertility,  a  regime  of  blood  and  iron  could  alone  succeed  in  pre- 

'  "  Laferrifere,  Histoire  du  droit  Fraii§ais  ",  Paris,  1846,  II.,  p.  168  flf. ; 
Maine,  "Ancient  Law." 


242  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

venting  the  laborers  from  establishing  themselves  on  the  free  land. 
Now  this  violent  suppression  of  the  free  land  accomplished  by 
means  of  slavery  served  in  Southern  Europe  as  the  foundation 
for  an  admirably  perfected  capitalistic  system  upon  which  a  cor- 
responding legal  structure  had  to  be  raised.  The  phenomena  of 
redistribution  in  particular,  that  is  to  say,  the  complex  relations 
prevailing  among  proprietors,  called  for  legal  relations  equally 
as  subtle  and  complex.  It  is  not  surprising,  therefore,  that  such 
economic  conditions  engendered  a  system  of  legal  relations  and 
corresponding  doctrines  that  remain  to  our  day  a  superb  monu- 
ment to  Latin  genius. 

From  this  point  of  view  Roman  law  bears  a  striking  analogy 
to  English  political  economy.  The  former  was  the  product  of 
the  complex  relations  prevailing  among  slave  owners,  while  the 
latter  was  the  outcome  of  the  no  less  complicated  relations  spring- 
ing up  among  modern  capitalists.  Both  were  the  natural  fruits 
of  a  country  where  egoism  reigned  supreme  and  of  a  people  ac- 
tuated by  none  of  the  softer  sentiments.  The  only  difference 
between  the  two  systems  consists  in  the  fact  that  the  Roman  law 
only  traces  out  the  technology,  while  English  political  economy 
reveals  the  very  physiology  of  human  egoism.  The  law  accord- 
ingly presents  a  more  superficial  character,  corresponding  to  an 
earlier  stage  in  the  development  of  scientific  thought,  which  can 
only  proceed  to  more  profound  researches  on  reaching  maturity. 
And  just  as  classical  political  economy  is  a  reflex  of  the  economic 
situation  surrounding  the  wage-system,  so  the  Roman  law  was 
an  ideal  product  of  the  economics  of  slavery.  A  like  legal  system 
could  never  have  arisen  out  of  conditions  of  economic  equality 
nor  could  it  have  been  raised  upon  a  patriarchal  basis. 

As  soon  as  the  slave  economy  began  to  disaggregate,  the  classic 
law  fell  into  abeyance  and  another  legal  system,  more  in  harmony 
with  the  new  economic  form,  took  its  place.  This  period  of  legal 
decomposition  and  recomposition  is  of  extraordinary  importance, 
and  confirms  our  chosen  theory  in  the  most  striking  manner. 
We  have  already  observed  that  the  slave  economy  was  never 
established  in  all  its  rigor  in  Teutonic  countries,  and  that  from 
the  very  outset  the  suppression  of  the  free  land  there  assumed 
the  milder  form  of  serfdom.  Thus,  while  the  slave  economy  pre- 
vailing in  Southern  Europe  engendered  one  set  of  legal  relations, 
an  absolutely  different  legal  system,  based  upon  serfdom,  was 
established  in  the  countries  of  the  North.  The  latter  legal  system 
differed  from  that  of  Rome  in  three  respects:    it  instituted  and 


Chap.  Vni.]  ECONOMIC   FOUNDATIONS   OF  LAW  243 

sanctioned  patriarchal  relations  between  property  and  labor; 
it  protected  the  serf  from  arbitrary  acts  of  violence  on  the  part 
of  the  proprietor,  and  it  placed  respect  for  the  family  and  the 
sentiment  of  solidarity  above  the  mere  satisfaction  of  a  brutal 
egoism.^  In  the  course  of  time  Southern  Europe  was  also  obliged 
to  introduce  the  serf  system,  and  it  then  became  expedient  to 
substitute  the  Germanic  code,  which  was  the  outgrowth  of  the 
serf  economy,  for  the  classic  law  of  Rome  that  was  the  product 
of  slavery.  The  national  law  of  Italy  thus  sank  into  abeyance 
and  came  to  occupy  a  subordinate  position  beside  the  barbarian 
codes  which  were  henceforth  to  prevail.^  This  change,  as  we  can 
readily  see,  had  nothing  to  do  with  the  victory  of  one  national 
code  over  another.  It  was  simply  the  natural  reproduction  of 
a  legal  system  already  determined  for  the  purpose,  to  meet  the 
reappearance  of  the  very  economic  conditions  that  had  originally 
given  it  life.  We  have  thus  additional  proof  of  the  law's  absolute 
independence  of  national  character,  and  its  exclusive  dependence 
upon  the  economic  structure  of  society. 

The  introduction  into  mediaeval  Italy  of  economic  conditions 
similar  to  those  prevailing  in  primitive  Germany  thus  brought 
with  it  the  barbarian  codes  of  the  Teutons.  And  in  a  somewhat 
analogous  manner  the  later  institution  in  Germany  of  economic 
relations  similar  to  those  formerly  prevailing  in  Rome  introduced 
the  Roman  law  into  that  country  at  a  subsequent  period.  This 
latter  phenomenon,  which  has  so  puzzled  legal  historians  and 
still  forms  a  stumbling-block  to  the  Savigny  school,  loses  its 
anomalous  character  when  regarded  in  the  light  of  the  theory 
which  looks  upon  legal  revolutions  as  the  necessary  concomitant 
of  economic  change.^  The  wage  economy  that  grew  out  of  the 
old  trunk  of  feudal  society  engendered,  it  is  true,  an  absolutely 
new  set  of  relations  between  property  and  labor,  and  these  in 
turn  had  consequently  to  give  rise  to  legal  institutions  heretofore 
unknown.     But   the   system   of  redistribution   instituted   under 

^  CJ.  Schmidt,  "Der  principielle  Unterschied  zwischen  den  romischeii 
und  germanischen  Rechten",  Rostock,  1853,  pp.  272  fif. 

2  By  the  twelfth  century  "Roman  jurisprudence  and  the  books  of 
Justinian  had  fallen  into  oblivion  in  Italy,  and  the  code  of  the  Lombards 
held  full  sway"  {Giannone,  "Storia  civile  del  regno  di  Napoli  "  (1723), 
1821,  I,  pp.  289-91). 

3  Dankwardt  very  well  remarks  that  the  introduction  of  the  Roman  law 
into  Germany  —  which  according  to  some  could  only  have  been  effected 
by  missionaries  after  the  manner  that  a  new  religion  is  imported  and 
propagated  —  was  really  occasioned  by  an  alteration  in  relations  of  fact, 
which  made  the  ancient  German  code  no  longer  possible  ("  National-oeko- 
nomisch-civilistische  Studien",  Leipzig,  1852,  pp.  19-30). 


244  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

this  new  economic  form,  though  it  differed  widely  from  that 
prevailing  during  the  feudal  period,  offered  a  profound  analogy 
to  that  of  the  slave  economy.  Thus  though  the  law  regulating 
the  labor  contract  had  to  be  an  original  creation  of  the  new 
economic  system  (or  at  best  an  elaboration  of  the  contract  of 
feudal  ^  service),  the  law  regulating  the  relations  among  proprie- 
tors could  practically  be  reproduced  in  its  classic  Roman  form. 
Now  it  is  exactly  these  relations  between  proprietors  that  con- 
stitute the  essential  object,  and  form,  as  it  were,  the  organic 
tissue  of  the  law^  while  the  relations  between  property  and  labor 
only  enter  in  a  subsidiary  way.  Thus  the  organic  and  vital  side 
of  the  law  could  be  regulated  by  the  principles  of  the  jus  romanum. 
The  Roman  law  accordingly  emerged  from  the  tomb  where  it 
had  so  long  reposed  into  the  expansion  of  a  new  life.  The  move- 
ment toward  this  awakening  commenced  in  Italy  where  the  wage 
economy  first  began  to  develop,  following  the  expropriation  of 
the  cultivators.  The  new  and  more  active  economic  relations 
that  were  springing  up  in  the  industrial  cities  of  the  Italian  pen- 
insula soon  became  incompatible  with  the  narrow  rigidity  of 
feudal  law  and  communal  customs,  and  accordingly  necessitated 
the  institution  of  a  legal  system  more  rapid  in  its  workings  and 
more  subtle  in  its  movements,  and  such  a  system  was  found 
already  elaborated  in  the  Roman  law.^ 

This  renaissance  of  the  Roman  law  in  Italy  was  thus  the  natural 
consequence  of  the  new  economic  system  which  introduced  re- 
lations of  redistribution  analogous  to  those  of  the  slave  society; 

1  In  Roman  law  the  contract  "locatio  eonductio  operarum",  which  was 
not  even  protected  by  an  action,  was  applied  in  the  very  rare  cases  where 
a  freeman  hired  out  his  own  services,  and  in  the  more  frequent  instances 
when  the  slave  owner  rented  the  labor  of  his  slaves.  But  personal 
relations  were  more  common  in  feudal  law,  and  we,  consequently,  come 
more  often  upon  contracts  of  service  under  the  feudal  system.  It  was 
these,  therefore,  that  the  new  law  turned  to  account  ("Handworterbuch 
der  Staatswissenschaften",  vgl.  "  Arbeitsvertrag"). 

2  Cf.  Lerminier,  "Introduction  generale  a  I'histoire  du  droit",  Brussels, 
1836,  p.  139.  Maine  likewise  ("Ancient  Law")  sees  in  the  development  of 
economic  conditions  the  cause  of  the  modern  renaissance  of  Roman 
law  and  of  the  substitution  of  individualistic  law  for  feudal  law.  Even 
Savigny  recognizes  that  the  earlier  re-establishment  of  the  Roman  law 
in  Italy  "was  due  to  the  prosperity  and  flourishing  condition  of  the 
cities.  This  system  had,  in  fact,  to  be  revived  in  the  cities  and  by  the 
cities.  It  was  not,  therefore,  by  chance  but  through  the  necessary 
course  of  events  that  Roman  law  was  re-established  in  the  Italian  cities, 
whence  it  passed  on  into  France  and  Germany  to  correspond  to  like 
needs"  ("Storia  del  diritto  romano  nel  medio  evo",  Turin,  1859,  I,  p.  130). 
Truly  one  could  not  affirm  with  greater  clearness  the  economic  basis  of 
the  law.  And  in  several  other  passages  in  his  work  this  illustrious  author 
further  recognizes  the  fact.  Thus,  for  example,  in  speaking  of  the  legal 
system  established  in  Italy  toward  the  close  of  the  barbarian  invasions, 


Chap.   VIII.]  ECONOMIC   FOUNDATIONS   OF   LAW  245 

and  the  successive  ramifications  of  the  Roman  law  from  Italy  into 
Germany  was  again  but  the  necessary  corollary  of  the  economic 
revolution  that  spread  these  same  conditions  throughout  northern 
Europe. 

The  introduction  of  this  foreign  law  into  Germany  was  notT^ 
however,  effected  without  intense  opposition,  and  it,  indeed, 
contributed  not  a  little  to  embitter  the  very  economic  relations  j 
of  which  it  itself  was  the  product.  We  find  proof  of  this  in  the 
German  peasant's  intense  hatred  of  the  new  law,  a  hatred  so 
deadly  and  implacable  that  it  recalled  to  the  brilliant  civilization 
of  the  renaissance  the  rage  with  which  the  German  warrior  pierced 
the  throat  of  the  Roman  jurist  after  the  defeat  of  Varus,  crying, 
"  Now  viper,  hiss  again  if  you  can !  "  ^  Nevertheless  it  would 
be  an  unpardonable  error  to  regard  the  new  law  as  the  cause  of 
the  modern  capitalistic  system  and  all  the  crying  injustices  that 
accompanied  its  formation,  since  Ehe  new  code  only  sanctioned 
and  gave  legal  expression  to  economic  conditions  that  were  al- 
ready in  existence77 

Thus  legal  history  shows  us  that  instead  of  being  the  product 
of  abstract  reason,  or  the  result  of  national  consciousness,  or  a 
racial  characteristic,  the  law  is  simply  the  necessary  outcome 
of  economic  conditions.^  For  this  reason /aT definite  legal  system 
may  pass  on  from  one  nation  to  another  and  leap  from  an  earlier 
to  a  later  century,  whenever  its  corresponding  economic  system 
is  transmitted  from  this  people  to  that  and  from  one  historical 
epoch  to  another.  ^ 

After  this  rapid  survey  of  the  history  of  the  law,  let  us  now 
examine  the  various  juristic  institutions,  and  we  shall  there  find 
additional  confirmation  of  our  main  thesis. 

he  says:  "Had  landed  property  been  taken  from  the  Romans,  the  pres- 
ervation of  the  Roman  constitution  would  therewith  have  become  im- 
possible. From  the  permanence  of  the  Roman  constitution,  one  has 
therefore  to  presume  the  permanence  of  landed  property  among  the 
Romans"  {Ibid.,  i,  p.  198).  Now  in  thus  affirming  that  the  persistence 
of  economic  conditions  makes  the  persistence  of  legal  conditions  a  matter 
of  certitude,  the  author  practically  admits  that  the  latter  are  the  neces- 
sary product  of  the  former. 

1  Grimm,''  Deutsche  Rechtsalterthiimer",  Gottingen,  1854,  Preface,  xi ; 
Eichhorn,  "Deutsche  Staats- und  Rechtsgeschichte",  Gottingen,  1819, 
iii,  p.  337. 

2  "Property  is  the  principal  factor  in  the  development  of  the  law." 
Thus  Stf'in  expresses  himself  ("  Franzosische  Staats-  und  Rechtsge- 
schichte", Basel,  1875,  p.  15).  On  page  3(59  of  his  work  Stein,  however, 
introduces  an  ideal  element  into  this  evolution,  namely,  the  idea  of  the 
State. 


246  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

III.    The  Economic  Basis  of  Divers  Legal  Institutions 

Modern  law,  as  we  have  just  seen,  is  only  really  modern  in  its 
subordinate  elements,  in  that  portion,  namely,  which  pertains 
to  the  relations  between  property  and  labor;  and  this  is  due 
to  the  fact  that  these  secondary  relations  now  assume  a  form 
unknown  to  former  times.  In  its  fundamental  lines,  however, 
that  is  to  say,  in  everything  that  touches  the  relations  among 
proprietors,  modern  law  is  but  a  reproduction  of  the  Roman 
law ;  and  this  is  the  case,  because  these  more  important  relations 
practically  reproduce  the  earlier  Latin  structure.  We  have 
already  demonstrated  the  relation  of  dependence  existing  between 
legal  systems  and  economic  conditions,  by  noting  the  constant 
recurrence  of  the  same  legal  system  whenever  the  corresponding 
economic  conditions  were  reproduced.  If  we  now  make  a  careful 
analysis  of  the  various  legal  institutions  we  will  discover  that  they, 
too,  are  each  and  every  one  the  necessary  product  of  particular 
economic  conditions. 

(I)  —  The  Law  of  the  Family 

Let  us  first  examine  the  law  of  the  family.  The  transition 
from  primitive  promiscuity  to  that  earliest  form  of  familial  ag- 
gregation, known  as  the  maternal  family,  was  brought  about 
by  an  increase  of  population,  and  the  consequent  need  of  aug- 
menting the  means  of  subsistence  through  organised  co-operative 
labor.  This  necessity  of  forming  an  association  of  labor,  however 
imperfect,  inspired  in  the'  mind  of  the  primitive  man  the  idea  of 
uniting  into  distinct  groups  individuals,  who  had  up  to  this  been 
in  the  habit  of  wandering  at  will  from  place  to  place.  These 
groups  were  constituted,  and  at  the  same  time  circumscribed,  by 
forbidding  intermarriage  among  their  members,  and  by  compelling 
the  women  of  each  group  to  select  their  husbands  from  a  foreign 
group.  Within  the  familial  clans  thus  constituted,  the  children 
always  belonged  to  the  clan  of  the  mother,  and  consequently  to  a 
different  clan  from  that  of  the  father.  In  this  way  individuals 
belonging  to  different  clans,  but  all  collected  around  the  same 
maternal  head,  were  able  to  establish  a  primitive  labor  associa- 
tion. The  maternal  family  was  thus  the  first  means  employed  to 
concentrate  the  labor  of  several  individuals  upon  a  definite  terri- 
tory. It  constituted  the  first  limitation  placed  upon  the  dispersive 
tendencies  of  savage  life,  and  effected  the  first  improvement  in 
productive  force. 


Chap.   VIII.J  ECONOMIC   FOUNDATIONS   OF   LAW  247 

But  this  prehistoric  method  of  associating  labor  soon  gave 
evidence  of  its  multiple  defects.  It  resulted  in  the  dispersion 
of  the  masculine  element  of  each  clan  over  a  vast  territory,  and 
brought  together  upon  a  restricted  area  a  number  of  men  be- 
longing to  different  clans  who  owed  obedience  to  different  powers, 
and  consequently  were  little  inclined  to  work  together  in  harmony. 
Production  was  thus  confronted  with  serious  obstacles,  which 
became  more  and  more  difficult  to  overcome  as  the  increase  of 
population  necessitated  greater  productive  force.  In  the  end, 
therefore,  the  maternal  system  had  to  give  way  to  the  paternal 
family.  Under  this  latter  organisation  it  was  the  men  who  sought 
their  wives  among  foreign  tribes  and  transmitted  their  name  and 
descent  to  their  children. 

The  institution  of  the  paternal  family  was  also  necessitated 
on  other  grounds.  When  subsistence  could  no  longer  be  pro- 
cured except  by  labor,  the  younger  and  weaker  members  of 
the  family  finding  it  impossible  to  produce  enough  for  their  needs 
were  forced  to  recognise  that  their  very  life  depended  upon  the 
labor  of  the  older  and  stronger  members  of  the  group.  The 
existence  of  the  women  and  children  came,  in  short,  to  depend 
henceforth  upon  the  labor  of  the  man,  and  he,  therefore,  naturally 
acquired  economic,  and  therewith  also  legal  power  over  those 
who  owed  him  their  life.  Henceforward  the  supervision  of  the 
family  —  which  in  prehistoric  times  had  rested  with  the  mother 
—  became  the  privilege  of  the  father,  and  he  acquired  therewith 
a  despotic  right  over  his  wife  and  children.  The  husband  now 
prevented  his  wife  from  having  any  further  intercourse  with  other 
men  (thereby  destroying  at  a  blow  the  primitive  polyandry), 
and  subjected  her  to  his  authority  in  all  the  acts  of  her  life.  Over 
his  children  likewise  the  father  exercised  a  limitless  patria  potestas, 
and  practically  assimilated  them  with  his  slaves.  Now  the  sover- 
eignty exercised  by  the  father  over  the  members  of  his  family  is 
in  reality  but  an  extension  of  the  prevailing  economic  relation 
between  property  and  labor,  and  for  this  reason  it  is  bound  to 
become  modified  as  this  economic  antithesis  is  softened.  Thus 
in  the  slave  society  the  wife  and  children  were  legally  the  slaves 
of  the  husband  and  father,  while  in  the  feudal  ecbnomy  they  found 
themselves  rather  in  the  position  of  his  serfs  and  vassals,  and  in 
our  modern  wage  economy,  and  especially  among  the  poorer  classes, 
they  assume  the  position  of  his  employees.  Thus  as  economic 
relations  change,  domestic  relations  have  likewise  to  be  modified, 
and  as  George  Sand  has  so  profoundly  observed,  proprietors  as 


248  FACTORS   OF   LEGAL  EVOLUTION  [Part  H. 

well  as  laborers  carry  over  into  their  domestic  life  the  same  re- 
lations of  authority  which  they  exercise  or  submit  to  in  the  outside 
world. 

The  institution  of  private  property  exerted  still  another  im- 
portant influence  upon  the  constitution  of  the  family.  The 
complicated  system  of  relationships  growing  out  of  the  maternal 
family,  which  gathered  so  large  a  number  of  individuals  about 
a  common  head,  could  only  prevail  before  there  was  any  such 
thing  as  private  possessions.  As  soon  as  the  idea  of  private 
property  arose  the  bond  of  relationship  ceased  to  be  represented 
by  a  community  of  sentiments  and  aspirations,  and  became 
embodied  in  the  economic  relation  of  hereditary  succession. 
Thus  when  this  institution  was  once  firmly  established,  the 
maternal  family  with  its  innumerable  host  of  relations  became 
clearly  intolerable,  since  it  necessitated  the  division  of  the  herit- 
age among  an  enormous  number  of  consanguins.  The  institution 
of  private  property  consequently  truncated  with  a  blow  the  mul- 
tiple ramifications  of  relationships  growing  out  of  the  regime  of 
collective  property,  and  replaced  them  with  a  simpler  system  of 
consanguinity  and  a  more  restricted  form  of  the  family.^ 

Finally,  succession  in  the  paternal  line  was  necessary  in  order 
to  allow  the  father  to  satisfy  his  natural  desire  of  transmitting 
his  possessions  to  his  children;  for  under  a  system  of  maternal 
succession  his  property  must  have  gone  to  his  brothers,  or  to  his 
sister's  children.  For  all  these  reasons,  the  maternal  family 
constituted  the  familial  form  correlative  to  the  system  of  com- 
munal property ;  while  the  paternal  family  arose  as  the  necessary 
corollary  of  private  property. 

But  the  influences  exerted  by  economic  conditions  upon  the 
constitution  of  the  family  are  not  confined  to  those  here  indicated. 
On  the  contrary,  they  are  so  numerous  and  so  deep  that  a  writer 
who  devoted  his  whole  life  to  the  study  of  this  question  did  not 
hesitate  to  declare  that  every  stage  in  the  evolution  of  the  family 
is  determined  by  considerations  of  property.^ 


(II)  —  The  Law  of  Property 

The  influence  exerted  by  economic  conditions  upon  the  law 
of  property  is  no  less  important.     Thus  the  distinction  between 

1  Cj.  Morgan,  "Ancient  Society",  London,  1877,  pp.  168  ff. 

2  McLennan,  "Studies  in  Ancient   History",  London,    1886,  pp.  136, 
377. 


Chap.  Vm.]  ECONOMIC  FOUNDATIONS  OF  LAW  249 

the  ager  puhlicus  and  the  ager  privatiis,  to  be  met  with  both  in 
primitive  German  law  and  in  the  Roman  law,  was  but  a  survival 
of  the  era  of  coTlective  property,  from  which  these  two  peoples 
had  but  recently  emerged.  The  absence  at  this  time  of  any 
distinction  between  movable  and  immovable  property  was  the 
result  of  the  unlimited  extent  of  free  land  which  allowed  culti- 
vated soil  to  be  compared  exactly  with  any  other  product 
of  labor.  And  ^the  rigorous  law  of  property  enforced  during 
Rome's  best  days  was  again  the  product  of  the  then  prevailing 
economic  conditionsT]  But  after  production  had  received  so  serious 
a  check  as  tha\  imposed  by  slavery,  it  became  more  than  ever 
necessary  to  exclude  all  other  institutions  tending  to  restrict  the 
product,  for  a  situation  that  was  already  unsatisfactory  could 
not  well  be  aggravated.  It  was  inexpedient,  therefore,  to  load 
the  right  of  property  with  legal  limitations,  for  these  only  offered 
further  obstacles  to  the  productivity  of  labor.  In  the  end,  there- 
fore, property  came  to  assume  the  character  of  an  absolute  right. 
This  essentially  economic  reason  for  the  existence  of  Quiri- 
tarian  property  appears  also  e  contrario  from  the  fact  that  the 
Roman  law  did  not  hesitate  to  place  rigorous  limitations  upon 
the  right  of  property  whenever  such  action  was  rendered  neces- 
sary in  the  interests  of  production.  It  was  with  this  end  in  view 
that  legal  servitudes  were  established,  as  they  afforded  an  op- 
portunity of  developing  rural  production.  It  was  in  the  same 
sj)irit  that  permission  was  given  to  hunt  over  private  estates, 
because  the  chase  benefited  extensive  agriculture  by  destroying 
the  wild  animals  that  were  wont  to  injure  the  fields.  According 
to  Jhering  the  peculiar  provision  of  the  Roman  law  which  allowed 
him  who  had  appropriated  an  object  to  return  its  price  instead  of 
restorijg-it  in  kind,  also  rested  on  economic  grounds,  (in  order 
to  encourage  the  cultivation  of  the  soil,  it  was  further  arranged 
that  he  who  cleared  an  uncultivated  area  should  become  the 
proprietor  thereof  after  a  lapse  of  ten  years./  And  it  was  also 
with  an  economic^nd  in  view  that  the  iisiccapio  was  introduced, 
which  aimed  atkewarding  the  spirit  of  industrial  initiative  by 
punishing  absenteeism  among  landlords. \l  The  essentially  economic 
character  of  this  latter  institution  comes  out  still  more  clearly 
from  the  fact  that  it  did  not  exist  in  countries  where  economic 
conditions  rendered  it  unnecessary.  The  exigencies  of  Roman 
production,  which  had  already  become  relatively  intensive  in 
character,  made  it  expedient  for  the  law  to  recognize  such  a  right 
of  property  in  him  who  had  devoted  his  labor  to  a  certain  piece 


250  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

of  land  for  a  long  period  of  time ;  but  the  agricultural  conditions 
of  the  Orient,  that  were  much  more  extensive  in  character  and 
facilitated  besides  by  the  exuberance  of  nature,  made  no  such 
demands,  as  production  could  proceed  in  a  very  satisfactory 
way  without  according  any  right  of  this  kind.  Thus  in  solemn 
contrast  to  the  usucaption  of  the  Romans  stood  the  Jewish  Jubilee, 
which  disregarded  everything  that  time  and  labor  had  added  to 
the  value  of  property,  and  assured  its  periodic  return  to  the  idle 
or  absent  landlord. 

Even  in  the  Roman  economy  the  limitations  laid  upon  the 
rights  of  property  with  a  view  to  increasing  the  rights  of  labor 
were  affected  by  degrees,  and  only  increased  in  number  as  pro- 
duction itself  became  more  intensive  in  character.  We  can 
accordingly  account  for  the  gradual  prevalence  of  the  theories 
of  the  Proculians,  who  maintained  that  the  property  right  in 
the  thing  manufactured  out  of  materials  belonging  to  another 
was  lodged  in  the  maker,  over  those  of  the  Sabinian-&,  who  ac- 
corded this  right  to  the  owner  of  the  original  materials.  This 
very  prevalence  betrayed,  however,  a  prejudice  in  favor  of  the 
exigencies  of  production,  and  this  prejudice  also  became  more 
marked  as  production  became  more  intensive.^  Primitive  Roman 
law  furthermore  allowed  the  possessor  in  good  faith  of  another's 
estate  to  be  ejected  by  the  rightful  owner  and  even  deprived  of 
his  property  in  the  fruits.  We  can  readily  understand,  however, 
what  difficulties  a  rigorous  application  of  this  law  would,  in  the 
course  of  time,  place  in  the  way  of  agricultural  progress,  and  how 
it  must  have  become  necessary  to  guard  the  interests  of  the  cul- 
tivator by  some  milder  form  of  legislation.  For  this  reason  it 
was  later  provided  that  the  fruits  should  remain  the  property 
of  him  who  held  in  good  faith.^  We  can  also  recall  another  in- 
cident of  the  same  order.  The  rigorous  provisions  of  primitive 
Roman  law  that  permitted  and  even  encouraged  the  most  signal 
bad  faith  on  the  part  of  contractual  parties,  became  with  economic 
and  commercial  progress  a  serious  obstacle  to  all  business  trans- 
actions, because  they  gave  rise  to  numerous  tricks  and  subter- 
fuges that  prevented  honest  men  from  entering  into  contracts 
at  all.  With  the  growth  of  capitalistic  property,  the  necessity  was, 
therefore,  felt  of  exacting  good  faith  on  the  part  of  those  entering 

1  Oertmann,  "Die  Wirtschaftslehre  des  Corpus  Juris  Civilis",  Berlin, 
1891,  pp.  27,  60,  71,  119,  etc. 

2  Dankwardt,  "  National-oekonomie  und  Jurisprudenz",  Rostock,  1857, 
I,  p.  49. 


Chap.   Vm.]  ECONOMIC   FOUNDATIONS   OF   LAW  251 

into  a  contract,  and  of  departing  from  the  rules  of  the  primitive 
strictum  jus  upon  this  subject.^ 

In  general  we  may  say  that  the  jus  gentium  of  the  Romans 
was,  in  its  entirety,  the  product  of  the  development  of  their  inten- 
sive economy,  which  compelled  them  to  p|ay  continually  greater 
consideration  to  the  producer's  capital.  'Later  on,  during  the 
days  of  the  feudal  economy,  the  liens  placed  upon  property  in  favor 
of  labor  were  provided  simply  with  the  idea  of  favoring  production, 
which  at  that  time  required  the  employment  of  assiduous,  effica- 
cious and,  consequently,  well-paid  labor?;  A  like  thought  in- 
spired that  set  of  servitudes,  emphyteuses,  quit-rents  and  the 
like,  which  encumbered  property  during  the  Middle  Ages  —  and 
so  true  is  this  that  the  moment  these  provisions  became  an  obstacle 
to  production  they  were  at  once  abandoned.  Thus  in  mediaeval 
England,  the  right  of  pasturage  upon  the  uncultivated  lands  of 
"Ehe^seigniorial  demesne  formed  an  integral  part  of  the  feudal 
lord's  grant,  because  without  the  exercise  of  this  right  the  cultiva- 
tion of  land  was  impossible.  But  with  a  change  jn  agrarian 
conditions,  this  right,  instead  of  favoring  agriculture,  became  an 
obstacle  in  its  path,  and  it  was  accordingly  abolished. ^  In  short, 
all  those  strange  rights  attached  to  feudal  property  constituting 
what  are  spoken  of  as  banalities  (moulin  banal,  four  banal,  etc.), 
the  right  of  chase,  and  others  of  a  like  nature,  were  but  products 
of  conditions  inherent  in  the  mediaeval  economy,  for,  seeing  their 
incojiie  constantly  curtailed,  property  owners  had  to  arrogate  to 
themselves  all  sorts  of  lucrative  rights  and  privileges  in  order  to 
'increase  their  revenue. 


(Ill)  —  The  Law  of  Inheritance 

The  influence  exerted  by  economic  conditions  upon  the  right 
of  succession  is  still  more  interesting.  When  regarded  from 
the  economic  standpoint  the  singular  evolutions  of  this  law  are 
not  so  difficult  to  follow.  The  fundamental  principle  that  has 
determined  the  course  of  hereditary  succession  is  as  follows : 

During  the  primitive  period  when  property  belonged  to  the 
family,  succession  was  necessarily  ab  intestato  as  the  several  mem- 
bers of  the  family  group  already  enjoyed  a  right  of  property 

^  Schmidt,  **Der  principielle  Unterschied  zwischen  den  rom.  und  germ. 
Rechten",  p.  268. 

^  Blackslone,  "Commentaries  on  the  Laws  of  England",  London,  1854, 
II,  p.  36. 


252  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

or  condominium  in  the  common  possessions.  But  the  motive 
that  led  to  inheritance  ah  intestate  disappeared  upon  the  insti- 
tution of  the  slave  economy  and  the  introduction  of  private 
property.  Other  reasons  also  argued  in  favor  of  according  the 
proprietor  the  right  of  disposing  of  his  goods  upon  his  death. 
Slavery,  as  we  have  seen,  placed  serious  obstacles  in  the  way  of 
production  and  accumulation,  and  these  obstructions  had  to  be 
overcome  by  the  creation  of  some  counteracting  force  equally 
as  powerful.  Among  the  forces  applied  to  this  purpose  nothing 
was  so  effective  as  the  right  of  testation,  which  excited  the  desire 
of  accumulation  and  finally  rendered  it  insatiable.  Thus  the 
individualistic  character  of  slave  property  and  the  bounds  it  set 
to  production  together  resulted  in  the  appearance  of  the  testament. 
But  continued  accumulation  aroused  all  the  antagonism  in- 
herent in  the  slave  system  and  ultimately  threatened  universal 
impoverishment.  Thus  there  was  no  longer  any  reason  to  stim- 
ulate production,  and  the  desire  arose  to  confine  the  opportu- 
nities for  accumulation  within  narrower  bounds.  Numerous 
exceptions  were  therefore  made  to  the  freedom  of  testation, 
and  the  right  was  further  limited  to  a  part  of  the  testator's  pos- 
sessions. At  a  later  period,  when  slavery  was  succeeded  by 
serfdom,  some  of  the  conditions  of  the  primitive  economy  were 
reproduced.  Holdings  of  serf-lands  were  not  granted  to  the 
individual  but  to  the  family,  to  be  handed  down  undivided  to 
succeeding  generations.  This  was  due  to  the  necessity  of 
allowing  the  soil  that  had  been  so  exhausted  by  slavery  to 
recuperate  through  continuous  and  careful  cultivation.  Thus 
the  exigencies  of  agriculture  necessitated  inheritance  ah  intestato 
for  peasant  holdings.  ,  The  political  nature  of  feudal  property 
introduced  a  like  necessity  for  seigniorial  holdings,  since  the 
jurisdiction  accompanying  the  property  right  of  the  early 
Middle  Ages  rendered  it  necessary  that  the  estate  should  not 
pass  out  of  the  family,  inasmuch  as  the  family  was  the  depositary 
of  political  sovereignty  and  answerable  for  the  same  to  the 
king.'  Sovereignty,  moreover,  was  essentially  monarchical  and 
could  not  be  divided  among  a  number  of  lords.  ''Thus  the 
property  right  which  constituted  the  basis  of  such  sovereignty 
had  likewise  to  be  transmitted  to  but  one  of  the  sons  or  descend- 
antsc  Hence  the  right  of  primogeniture,  so  general  during  the 
Middle  Ages,  was,  as  Adam  Smith  remarked,  the  product  of  the 
political  power  inherent  in  property.  Its  end  was  in  no  wise  to 
deprive  some  members  of  the  family  of  their  share  in  the  common 


Chap.   VIII.]  ECONOMIC   FOUNDATIONS   OF    LAW  253 

heritage,  but  simply  to  entrust  one  of  them  with  its  administra- 
tion and  jurisdiction.^ 

And  even  after  the  right  of  property  ceased  to  carry  with  it 
poHtical  power,  other  reasons  entered  in  to  limit  the  heritage 
of  landed  property  to  a  single  descendant.  Collective  inher- 
itance ab  intestato  was  compatible  enough  with  the  primordial 
economy,  where  the  several  members  of  the  family  worked  to- 
gether and  jointly  administered  their  common  possessions,  but 
the  arrangement  became  intolerable  (after  the  growing  spirit 
of  individualism  had  induced  the  several  co-heirs  to  dismember 
the  family  heritage  to  the  injury  of  production  and  economic 
life  in  general.  The  necessity  then  arose  of  immobilizing  the 
land  in  the  hands  of  one  of  the  descendants. f  Herein  also  lies 
the  explanation  of  the  survival  of  the  right  of  primogeniture, 
and  of  the  fidei  commissa  after  the  downfall  of  the  feudal 
system,  and  the  tenacious  persistence  of  these  two  forms  for 
so  long  a  period.  In  this  connection  it  is  also  interesting 
to  note  that  while  the  evolution  of  inheritance  ab  intestato  pro- 
ceeds from  institutions  that  tend  to  dismember  property  (by 
dividing  it  up  among  the  legitimate  heirs)  and  makes  for 
institutions,  like  the  fidei  commissa  that  succeed  in  concentrat- 
ing it,  the  course  of  inheritance  by  testament,  on  the  contrary, 
proceeds  from  institutions  that  tend  toward  the  concentration 
of  fortunes  (by  transmitting  them  to  a  single  heir),  and  makes  for 
institutions  that  tend  toward  their  disintegration,  by  dividing 
up  the  legal  reservation  among  all  the  nearest  descendants. 

Inheritance  ab  intestato  was  thus  the  prevailing  form  of 
succession  in  the  serf  economy,  because  the  advantages  of  the 
testament  in  encouraging  accumulation  were  far  outweighed 
by  the  advantages  secured  through  inheritance  ab  intestato,  which 
favored  a  restorative  cultivation  of  the  soil  and  transmitted 
political  power  uninterruptedly  in  a  definite  family  group.  But 
the  reasons  that  led  to  inheritance  ab  intestato  vanished  with  the 
disappearance  of  the  serf  economy.  After  the  laborer  had  been 
deprived  of  the  possession  of  the  soil  he  cultivated,  and  there  was 
no  longer  any  connection  between  property  and  labor,  the  trans- 
mission of  the  holding  within  the  proprietor's  family  circle  was  of 
no  further  interest  to  the  producer,  and  consequently  carried 
with  it  no  advantages  to  rural  production;    Like  other  produc- 

1  Adam  Smith,  "Wealth  of  Nations"  (standard  edition),  p.  305.  Mias- 
kowski,  "Das  Erbrecht  und  die  Grundeigenthumsvertheilungen  im 
Deutschen  Reich",  Leipzig,  1885,  II,  pp.  44,  201,  253,  etc. 


254  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

live  enterprises,  agriculture  found  itself  benefited  by  the  testa- 
ment, which  was  at  that  time  encouraging  capitalistic  production 
and  accumulation.  \lt  is  thus  easy  to  understand  why  the  right 
of  testation  was  revived  with  the  institution  of  the  wage  economy, 
and  became  the  normal  corollary  of  the  property  system,  for  the 
accumulation  of  wealth  and  its  subsequent  concentration  in  the 
hands  of  the  few  proceeded  more  rapidly  under  this  impulsion^ 
But  as  was  the  case  in  the  slave  economy  before,  so  now  the  pro- 
cess of  accumulation  under  the  wage  system  came  in  time  upon 
obstacles  which  it  could  not  surmount  without  provoking  general 
disaster.  It  was  thus  to  the  public's  advantage  to  set  bounds 
to  capitalization  and  enrichment.  For  this  reason  freedom  of 
testament  had  again  to  be  limited,  because  it  encouraged  too 
much  accumulation.  It  was  at  this  juncture,  accordingly,  that 
the  institution  of  the  legitime  was  re-established,  which  had  origi- 
nally been  instituted  toward  the  close  of  the  slave  economy. 

This  alternate  development  of  inheritance  ah  intestato  and  the 
testament  is  written  indelibly  in  the  history  of  the  law.  Thus 
in  primitive  Germany  inheritance  was  ah  intestato,  and  the  her- 
itage was  handed  down  ipso  jure  to  all  the  members  of  the  family. 
Inheritance  ah  intestato  was  likewise  the  rule  in  primitive  Roman 
law,  and  the  testament  —  which  in  itself  was  an  exceptional 
act  needing  a  special  law  to  validate  it  —  was  resorted  to  in  the 
early  days  simply  with  the  view  of  assuring  a  portion  of  the  family 
heritage  to  the  emancipated  sons,  who,  according  to  the  strict 
law,  would  otherwise  have  been  excluded.^  Even  to-day  in  Russia 
the  peasants  recognize  nothing  but  inheritance  ah  intestato,  because 
all  the  members  of  the  family  jointly  cultivate  the  paternal  prop- 
erty and  regard  themselves  in  consequence  as  the  possessors  of 
a  right  of  condominium  in  the  estate.  But  in  western  Europe 
the  introduction  of  the  slave  economy  gave  rise  to  testamentary 
institutions.  Upon  the  decline  of  this  economic  system,  however, 
and  with  the  decomposition  of  the  capitalistic  economy,  these 
institutions,  in  turn,  came  to  be  limited  by  the  institution  of  the 
Falcidian  portion.  \JAs  the  slave  economy  gave  rise  to  testamentary 
succession  in  Italy,  so  the  serf  economy  revived  inheritance  ah 
intestato  in  Germany,  and  grafted  on  to  this  old  trunk  the  right  of 
primogeniture  and  the  fidei  commissa.  These  latter  institutions 
afterwards  spread  out  over  the  Latin  world  as  well,  when  the 
serf  economy  took  root  there  among  the  ruins  of  slavery. 

When  the  free  land  could  be  suppressed  automatically,  serf- 
1  Maine,  "Ancient  Law." 


Chap.   VIII.]  ECONOMIC   FOUNDATIONS   OF   LAW  255 

dom  finally  made  way  for  the  wage  system,  and  the  testament 
appeared  again  in  Italy  to  start  on  a  fresh  course  of  development. 
The  barbarians  themselves  adopted  all  the  provisions  of  the 
Roman  law  relative  to  testation  with  the  single  exception  of  the 
Falcidian  'portion,  which,  it  should  be  remarked,  they  emphatically 
repudiated.^  And  why  was  this  ?  Simply  because  this  provision 
was  an  expedient  to  check  dangerous  and  excessive  accumulation, 
and  it  had  therefore  to  be  thrown  aside  at  an  epoch  when,  as  was 
the  case  during  the  early  days  of  the  development  of  the  wage 
economy,  the  normal  process  of  accumulation  was  barely  sufficient 
to  satisfy  the  needs  of  production.  From  Italy  the  testament 
passed  on  into  Germany,  where  the  older  feudal  relations  were 
likewise  undergoing  a  process  of  disintegration  to  make  way  for 
the  institution  of  the  wage  economy.  This  process  continued 
until  the  growth  of  an  abundant  fund  of  capital  —  always  an 
element  of  crises  and  disasters  —  made  it  necessary  to  impose 
a  series  of  progressive  checks  upon  accumulation.  Limits  were 
then  set  to  the  right  of  testation,  and  more  stress  came  to  be  laid 
upon  the  importance  of  inheritance  ah  intestato  through  the  in- 
stitution of  the  legitime. 

Economic  science  thus  furnishes  the  simplest  and  most 
natural  explanation  of  the  evolution  of  the  law  of  inheritance; 
while  legal  philosophers,  too  often  ignorant  of  economic  prin- 
ciples, have  never  succeeded  in  making  it  accord  with  their  systems. 

The  theories  of  Gans  and  Lassalle  are  the  most  ingenious  legal 
philosophy  has  to  offer  us  on  this  subject. 

Gans  regards  inheritance  ab  intestato  as  the  result  of  necessity 
and  the  testament  as  the  product  of  liberty.  The  former  system 
thus  predominated  in  the  east,  where  the  seeds  of  liberty  never 
germinated,  and  it  also  prevailed  in  the  early  days  of  Rome  be- 
fore liberty  was  born.  But  as  soon  as  the  ideal  of  liberty  took 
root  and  spread,  it  caused  testamentary  institutions  to  bloom 
throughout  the  Latin  world.  But  this  theory  fails  to  explain 
how  it  was  that  the  Germanic  world  —  which  according  to  Gans 
himself  represented  the  completest  expression  of  liberty  —  so 
long  ignored  the  right  of  testation.  Nor  does  it  explain  why, 
upon  the  abolition  of  slavery,  this  right  was  also  suppressed  in 
the  Latin  world  itself.^ 

1  Glasson,  "Histoire  du  droit  [etc.]  de  la  France",  1887,  III,  p.  188. 

2  Gans  ("Das  Erbrecht  in  seiner  weltgeschichtlichen  Entwicklung ", 
Stuttgart,  1835,  iv,  p.  214  ff.),  it  is  true,  says  that  the  German  system  of 
inheritance  constituted  a  step  in  progress  in  comparison  with  the  Roman 
system,  because  in  the  former  the  will  of  the  individual  no  longer  operated 


256  FACTORS    OF   LEGAL   EVOLUTION  [Part  II. 

Lassalle,  on  the  other  hand,  looks  upon  the  testament  as  a 
phenomenon  pecuHar  to  ancient  Rome,  a  product,  in  other  words, 
of  the  psychological  stage  that  this  nation  was  then  passing 
through.  The  religious  concept  peculiar  to  this  epoch  was  the 
immortality  of  the  will,  symbolized  in  the  myth  of  the  God  Lar, 
or  the  idea  of  the  continuance  of  the  spirit  of  the  defunct  in  the 
house  after  his  death.  But  the  carrying  out  of  the  deceased's 
wishes  must  have  given  rise  to  an  impossible  condition  by  subject- 
ing the  patrimony  to  the  will  of  the  dead,  thus  paralyzing  all 
effort  on  the  part  of  the  living.  To  obviate  this  difficulty  the 
institution  of  the  testament  was  interposed,  whereby  the  defunct 
abdicated  his  rights  over  patrimonial  affairs  and  invested  them 
in  his  heir.  It  was  thus  the  latter  who  was  left  to  carry  out  the 
wishes  of  the  deceased  and  prolong  as  it  were  the  original  indi- 
viduality.^ But,  adds  Lassalle,  the  human  mind,  in  the  course 
of  its  evolution,  finally  broke  away  from  its  earlier  belief  in  the 
immortality  of  the  will,  and  rose  to  the  higher  conception  of  faith 
in  the  immortality  of  the  soul.  Now  this  new  faith  excluded  all 
desires  on  the  part  of  the  deceased  in  regard  to  earthly  things, 
and  thus  severed  the  connection  that  the  testament  had  established 
between  the  will  of  the  testator  and  the  heritage.  This  at  once 
demonstrated  the  absurdity  of  desires  that  were  supposed  to  cease 
with  this  life  continuing  to  direct  and  command  temporal  affairs 
after  their  own  extinction.  Thus  the  historical  and  psychological 
reasons  for  the  testament  disappeared,  and  henceforth  inheritance 
had  by  the  very  nature  of  things  to  be  ah  intestato.  Such,  ac- 
cordingly, was  the  system  which  was  established  and  became 
general  throughout  the  Germanic  world.  But  why  then  was  the 
testament  re-established  in  Germany  toward  the  close  of  the 
Middle  Ages  ?  This,  Lassalle  concludes,  was  entirely  due  to  an 
error  on  the  part  of  the  jurists  of  the  time,  and  to  a  false  applica- 
tion of  the  Roman  law  which  the  human  mind  when  better  informed 
must  sooner  or  later  set  aside. ^ 

Thus  according  to  this  ingenious  philosopher  the  modern  will 

against  the  sacred  rights  of  family,  and  only  exercised  itself  after  family 
rights  had  been  satisfied.  But  this  does  not  interfere  with  the  fact  that 
the  system  countenanced  a  backward  step  in  the  freedom  of  the  testator, 
and  by  no  means  constituted  a  factor  of  progress  in  his  direction. 

1  Lassalle,  "System  der  erworbenen  Rechte",  Leipzig,  1861,  II,  p.  10  ff. 
"Fustel  de  Coulanges"  [see  Vol.  II  of  this  Series,  p.  542]  also  deduces  the 
testament  from  religious  concepts,  and  declares  that  it  was  unknown  in 
the  early  days  of  Rome  simply  because  it  was  incompatible  with  the 
primitive  religious  beliefs  of  the  Roman  people  ("La  cite  antique",  Paris, 
1890,  p.  87). 

2  Lassalle,  loc.  oil.,  II,  p.  497. 


Chap.   VIII.]  ECONOMIC   FOUNDATIONS   OF   LAW  257 

is  the  result  of  the  error  of  some  sage.  This  all-important  institu- 
tion, entering  so  closely  into  the  economic  life  of  the  people,  had 
its  origin  in  the  caprice  or  ignorance  of  some  doctor  of  law !  Such 
are  the  conclusions  and  such  the  absurdities  to  which  we  are  led 
by  following  a  theory  that  endeavors  to  deduce  the  law  from  the 
nebulous  regions  of  myth  instead  of  allowing  it  to  proceed  natu- 
rally from  the  prosaic  but  real  world  of  econbmic  fact. 

(IV)  —  The  Law  of  Contract 

Passing  on  from  the  law  of  inheritance  to  the  law  of  contract, 
we  come  upon  fresh  proof  of  the  law's  dependence  upon  economic 
conditions.  The  personal  basis  of  obligations,  the  sanctity  of 
the  oath,  and  the  absolute  faith  in  the  testimony  of  the  witness, 
were,  as  we  have  said,  common  characteristics  of  German  and 
early  Roman  law.  Now  the  personal  basis  of  obligations  was 
rendered  necessary  from  the  existence  of  free  land,  which  ex- 
cluded the  possibility  of  the  wage  system,  and,  consequently, 
compelled  the  capitalist  to  take  advantage  of  his  debtor's  in- 
solvency in  order  to  reduce  him  to  a  condition  of  servitude  and 
so  obtain  his  profits.  This  important  legal  phenomenon  has, 
accordingly,  been  reproduced  among  all  peoples  possessing  an 
abundance  of  unoccupied  fertile  land.  It  prevails  today  in 
Africa,  where  the  law  makes  the  insolvent  debtor  and  his  de- 
scendants the  slaves  of  the  creditor  so  long  as  the  debt  remains 
unpaid.^  The  probative  force  of  oral  declarations  was,  on  the 
other  hand,  a  product  of  the  open  brutality  and  the  absence  of 
all  fiction  prevailing  in  the  slave  economy.  In  the  midst  of 
the  wage  economy  falsehood,  indeed,  reigns  supreme  and  covers 
with  a  mantle  of  justice  the  injustices  inherent  in  such  economic 
conditions ;  but  fiction  was  unknown  to  the  slave  society,  whose 
economic  relations  were  openly  based  upon  force.  It  is  thus 
easy  to  explain  why  so  great  faith  was  accorded  to  the  given 
word  in  this  society,  and  how  evidence  came  to  be  accepted  as 
proof.  ^ 

A  still  more  suggestive  comparison  next  demands  our  atten- 

^  Post,  "Afrikanische  Jurisprudenz",  Leipzig,  1887,  I,  p.  90. 

2  Jhering  ("Zweckim  Recht",  Vol.  II,  p.  608)  has  judiciously  remarked 
that  the  lie  is  only  punished  when  it  is  socially  injurious,  and  that  it  is 
not  so,  for  example,  under  the  despotic  regime,  because  lying  is  then  a 
necessary  condition  of  social  existence  and  individual  tranquillity.  But 
the  economic  despotism  that  is  founded  upon  the  exclusive  appropri- 
ation of  the  soil  hkewise  makes  lying  a  condition  precedent  to  individual 
and  social  existence,  and  therefore  leads  also  to  its  impunity. 


258  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

tion.  Even  a  superficial  study  of  the  rent-contract  reveals  a 
substantial  difference  between  the  condition  of  the  Roman  ten- 
ant, who  only  held  a  jus  ad  rem  (which  was,  however,  somewhat 
enlarged  during  the  later  days  of  Rome  through  the  action  of 
the  prsetor),  and  that  of  the  modern  tenant,  who  possesses  (at 
least  according  to  a  well-recognized  authority)  a  jus  in  re.  Now 
the  cause  of  this  difference  lies  in  the  dissimilarity  of  conditions 
existing  in  the  slave  economy  and  the  wage  economy.  In  the 
slave  economy  only  the  most  fertile  lands  were  reduced  to  cul- 
tivation, and  this  practically  excluded  economic  rent.  Hence 
it  was  impossible  that  a  progressive  increase  of  the  revenue  from 
this  source  should  ever  induce  the  landlord  to  evict  his  tenant 
in  order  to  obtain  a  higher  rent.  Upon  the  introduction  of  the 
wage  economy,  however,  a  difference  arose  in  the  fertility  of  the 
different  lands  under  cultivation,  and  economic  rent  consequently 
entered  in.  The  upward  tendency  of  this  return  offered  an  in- 
ducement to  the  proprietor  to  break  the  contract  with  his  tenant 
as  soon  as  the  amount  of  the  economic  rent  exceeded  the  amount 
stipulated  in  the  lease.  The  condition  of  the  tenant  was  thus 
rendered  precarious,  and  the  uncertainty  affected  cultivation 
injuriously.  The  necessity  thus  arose  of  providing  for  the  ex- 
igencies of  production  by  assuring  the  tenant  a  position  that 
was  securer  and  less  exposed  to  the  arbitrary  acts  of  the 
landlord.  We  notice  the  first  timid  manifestation  of  this  tendr 
ency  in  the  provisions  of  the  Code  Napoleon  which  accorded 
the  tenant  a  jus  in  re.  In  England  and  Ireland  still  stronger 
provisions  were  adopted  for  the  purpose.  Thus  English  legis- 
lation recognizes  a  right  of  compensation  in  the  tenant  for  improve- 
ments worked  into  the  land,  while  in  Ireland  the  redemption  of 
the  rent-charge  is  allowed,  that  is  to  say,  the  substitution  of  the 
tenant  for  the  proprietor.  In  this  manner  the  legal  form  of  the 
rent-contract  was  substantially  altered  under  the  pressure  of 
economic  conditions,  which  rendered  the  ancient  form  no  longer 
compatible  with  the  normal  advance  of  production.  At  first 
exposed  to  the  arbitrary  will  of  the  landlord,  the  tenant  came 
gradually  to  encroach  upon  the  position  of  the  proprietor  and 
threaten  his  rights. 

Economic  evolution  has,  moreover,  long  since  resulted  in 
the  application  of  the  principle  of  redemption  to  the  perpetual 
lease  or  emphyteusis.  Indeed,  the  greater  the  augmentation 
of  production,  the  smaller  became  the  proportion  that  the  fixed 
rent  bore  to  the  total   income  of    the    estate.      The  economic 


Chap.    VIII.]  ECONOMIC    FOUNDATIONS   OF   LAW  259 

power  of  the  emphyteuta  thus  increased  at  the  expense  of 
the  proprietor,  and  it  thus  became  comparatively  easy  for  him 
to  have  the  right  of  redemption  introduced  by  statutory 
enactment.  This  right  of  redemption  was  besides  vigorously 
demanded  in  the  interests  of  production,  as  agriculture  was 
otherwise  fettered  by  a  perpetual  lien  that  burdened  the  soil  and 
interfered  with  the  liberty  of  contract.  With  the  increase  of 
population  and  economic  progress  this  antagonism  became  more 
marked,  until  at  last  it  determined  the  destruction  of  the  an- 
cient legal  form  and  introduced  a  new  practice  and  a  new 
theory  of  the  perpetual  lease. 

It  would  be  easy  to  show  in  a  more  general  way  how  all  the 
important  and  really  fruitful  legal  reforms  have  been  carried 
through  with  a  view  to  advancing  economic  evolution.  Thus, 
beside  the  redemption  of  the  rent-charge  that  we  have  just 
been  speaking  of,  the  abolition  of  a  legal  rate  of  interest,  and 
of  imprisonment  for  debt,  the  publicity  of  the  mortgage,  and 
the  free  alienation  of  land,  were  all  legal  reforms  rendered  neces- 
sary by  a  change  in  economic  conditions.  But  though  it  be  a 
fact  that  the  law  is  thus  metamorphosed  with  every  readjust- 
ment of  economic  relations,  it  is  nevertheless  true  that  this  trans- 
formation is  effected  very  slowly  and  only  after  a  considerable 
interval  has  elapsed.  Thus  our  present  legal  system  has  already 
grown  rigid,  and  seems,  as  it  were,  to  be  stricken  with  a  kind  of 
paralysis.  This  is  simply  due  to  the  fact  that  it  is  no  longer 
inspired  with  economic  life,  and  thus  fails  to  respond  with  sufficient 
readiness  to  modern  demands.  Frequent  contradictions  are  thus 
apt  to  occur  in  applying  the  law  of  the  past  to  the  present  economic 
situation.  The  new  conditions  today  entering  into  rural  industry 
call  for  agrarian  contracts  that  are  more  elastic  and  more  favorable 
to  the  laborer,  but  the  law,  wrapped  in  its  dark  mantle  of  Roman 
formalism,  still  holds  fast  to  legal  forms  that  have  long  since 
ceased  to  be  applicable.  This  legal  system,  which  is  in  large 
part  the  product  of  a  past  age,  is  even  being  applied  in  all  its 
rigor  to  new  colonial  lands.  It  is  also  the  present  desire  to  con- 
fine the  contracts  on  the  Bourse  within  the  narrow  limits  of  the 
Roman  law.  The  German  system  of  the  land  register,  an  in- 
vention so  well  adapted  to  facilitate  the  free  alienation  of  the 
soil  and  the  raising  of  mortgages,  is  frowned  upon  by  jurists 
because,  forsooth,  it  does  not  enter  into  their  traditional  for- 
mulas. The  landlord's  legal  rights  over  the  tenant's  farming  im- 
plements likewise  constitute  a  serious  obstacle  to  the  introduc- 


260  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

tion  of  an  agricultural  credit  system.  The  Code  Napoleon  (as 
Pelegrino  Rossi  has  already  remarked)  and  the  Italian  Code 
both  evince  an  unjust  partiality  in  favor  of  landed  property, 
according  it  an  excessive  importance  no  longer  compatible  with 
the  development  of  personal  wealth. 

There  is  thus  a  sorry  contrast  between  economics  and  our 
modern  legal  system,  which  no  longer  answers  readily  enough  to 
the  exigencies  of  economic  evolution.  The  law  is  thus  defeating 
its  own  ends;  for  instead  of  facilitating  the  existing  relations 
among  proprietors  and  favoring  the  development  of  property, 
it  often  places  obstacles  in  the  way  of  its  own  expansion. 

(V)  —  The  Law  Regulating  the  Relations  between  Masters  and 

Workmen 

The  legal  forms  thus  far  mentioned  deal  exclusively  with  mat- 
ters pertaining  to  the  redistribution  of  wealth.  It  is  the  object 
of  these  provisions  to  repress  all  violations  of  the  right  of  property 
arising  among  the  owning  classes,  and  establish  such  relations 
among  proprietors  as  are  calculated  to  favor  the  extension  of 
capitalistic  property.  Now  this  part  of  the  law  presents  a  deep 
impress  of  equity,  and  thus  gives  countenance  for  the  moment 
to  the  idea  that  the  law  is  indeed  the  realization  of  justice.  But 
this  is  simply  due  to  the  fact  that  these  legal  provisions  regulate 
the  affairs  of  men  who  are  economically  equal  —  or  at  least  enjoy 
a  liberty  of  choice  —  and  among  whom  usurpation  is  excluded. 
But  as  soon  as  we  turn  our  attention  to  the  legal  provisions  regu- 
lating the  relations  between  proprietors  and  non-proprietors,  we 
perceive  at  once  that  our  former  concept  was  but  an  infantile 
delusion ;  for  this  side  of  the  law  shows  us  an  obstinate,  impudent 
and  thorough  consecration  of  privilege  and  a  decisive  preference 
for  property  rights. 

So  long  as  property  was  founded  upon  slavery,  the  usurpatory 
character  of  the  law  was  not  accentuated,  because  the  laborer 
was  excluded  entirely  from  legal  relations,  which  then  only  took 
account  of  the  affairs  of  proprietors.  We  may  therefore  look  in 
vain  through  Roman  law  for  the  exhibition  of  any  hostile  intent 
toward  the  laborer.  And  yet  the  law  brutally  proclaimed  its 
inherent  character  by  affirming  the  entire  institution  of  slavery 
to  be  contrary  to  the  laws  of  nature.  In  our  modern  epoch,  on 
the  contrary,  capitalistic  property  is  based  upon  the  exclusive 
appropriation  of  the  soil,  and  accordingly  has  no  motive  in  sup- 


Chap.    VIII.J  ECONOMIC   FOUNDATIONS   OF    L,\W  261 

pressing  the  legal  personality  of  the  laborer.  Modern  law  thus 
reflects  the  usurpatory  nature  of  its  origin  and  clearly  betrays 
its  emanation  from  capital.  This  fact  appears  very  clearly  from 
the  law's  unremitting  care  for  the  fortunes  of  the  masters,  and 
from  its  no  less  constant  abandonment  of  the  workmen's  interests. 
The  truth  is  shown  again  in  the  complete  liberty  that  the  law 
accords  to  property  in  its  dealings  w4th  labor,  in  striking  contrast 
with  the  multiple  checks  it  places  upon  the  reciprocal  relations  of 
proprietors. 


In  regard  to  the  general  principles  of  the  law  our  criticism 
would  be  still  sharper.  In  general  we  should  say  that  all  legal 
aphorisms  have  been  drawn  up  in  the  interests  of  the  rich  and 
strong  and  in  contempt  of  justice  and  equity.^  We  might  even 
add  that  the  law  in  its  entirety  vindicates  the  assertions  of  Saint 
Simon  de  Championiere  (who  was  himself  a  jurist)  and  other 
impartial  writers  who  regard  lawyers  as  the  most  implacable 
enemies  of  the  laboring  classes  and  the  most  zealous  defenders 
of  feudal  and  capitalistic  usurpation. 

(VI)  —  Criminal  Law 

In  passing  on,  finally,  from  civil  to  criminal  legislation,  we 
find  the  influences  exerted  by  economic  conditions  upon  these 
legal  phenomena  are,  if  anything,  still  more  sharply  accentuated. 
We  should  also  note  that  economic  conditions  here  operate  at 
once,  and  with  equal  force,  upon  the  crime  itself  and  upon  its 
punishment.  A  lengthy  demonstration  is  scarcely  necessary 
to  establish  the  fact  that  a  very  important  class  of  crimes,  namely, 
those  against  property,  are  the  result  of  economic  conditions 
and  proceed  directly  from  the  misery  that  weighs  so  heavily 
upon  the  larger  proportion  of  the  population  in  our  richest  and 
most  civilized  countries.^    And  crimes  which  at  first  sight  offer 

^  On  these  points  cf.  Menger's  very  important  work,  "Das  biirgerliche 
Recht  und  die  besitzlosen  Classen"  ("Aj-chiv  fiir  soziale  Gesetzgebung 
und  Statistik",  1889,  1890).  Salvioli,  "I  difetti  sociali  del  codice  civile", 
Palermo,  1891.  Bechaux,  "Le  droit  et  les  faits  ^conomiques",  Paris, 
1889,  pp.  101,  156,  171,  etc.,  and  for  the  opposite  point  of  view  cf.  Nani, 
"II  soeialismo  nel  codice  civile",  Turin,  1892. 

2  Baudrillarl  has  discovered  that  the  greatest  criminality  and  the 
greatest  frequency  of  felonious  thefts  occur  in  the  Department  of  the 
Eure,  which  is  one  of  the  most  intellectual  and  richest  departments  of 
France  ("La  Normandie  et  la  Bretagne",  1885).  "With  the  diffusion  of 
manufactures  the  number  of  crimes  against  persons  diminish  while  those 


262  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

but  slight  evidence  of  correlation  with  the  economic  condition 
of  the  criminal,  such  as  crimes  against  the  person  and  crimes 
committed  by  the  rich,  upon  more  careful  analysis  also  reveal 
their  economic  essence.  It  has  been  remarked,  however,  that 
crimes  against  the  person  are  more  frequent  during  periods  when 
living  is  cheap  and  prosperity  more  general.  The  conservative 
school  has  hastened  to  conclude  from  this  that  a  large  number  of 
crimes  are  independent  of  the  economic  condition  of  the  criminal 
and  the  general  distribution  of  wealth.^  But  the  error  of  this 
deduction  becomes  apparent  when  account  is  taken  of  the  fact 
that  an  augmentation  of  material  wealth  only  leads  to  foolish 
waste  or  criminal  design  when  prosperity  is  precarious.  Thus 
if  the  laborer  profits  by  a  rise  in  his  wages  to  employ  his  funds  in 
an  illegitimate  manner,  or  if,  as  Toynbee  said,  an  augmentation 
of  wages  simply  means  an  increase  of  crime,  this  is  true  only 
because  the  increase  of  wages  comes  in  the  way  of  an  act  of  munifi- 
cence from  the  upper  classes,  and  its  essentially  transitory  char- 
acter renders  any  wiser  employment  irrational.  But  the  result 
would  be  very  different  if  we  had  to  do  with  a  really  lasting  amelio- 
ration in  the  condition  of  the  lower  ranks  of  society.  A  better- 
ment of  this  kind  would  have  the  inevitable  result  of  raising  the 
general  standard  of  morality,  and  this  in  turn  would  introduce 
a  greater  power  of  resistance  to  deleterious  appetites.^  As  for 
the  criminal  acts  of  the  rich,  we  must  bear  in  mind  that  economic 

against  property  increase"  ("An  Inquiry  into  the  State  of  the  Manu- 
facturing Population",  London,  1831,  p.  9).  Del  Mar  ("History  of  the 
Precious  Metals",  London,  1880,  p.  342)  furnishes  eloquent  facts  upon 
the  influence  exerted  by  the  discovery  of  gold  mines  upon  the  increase 
of  crime  (and  upon  the  increase  of  suicides  as  well).  Levasseur  ("La 
population  fran§aise",  II,  pp.  46,  129)  shows  that  the  constant  increase 
of  second  offenses  (and  also  of  suicide)  is  the  result  of  economic  causes. 

1  Ferri,  "Das  Verbrechen  in  seiner  Abhangigkeit  von  dem  jahrlichen 
Temperaturwechseln  ",  Berlin,  1882.  The  fact  alleged  in  the  text  has  been 
recently  contested  by  Silioy  Cortes  ("Ecole  positive",  February,  1892), 
who  shows  by  figures  taken  from  Spanish  statistics  that  there  is  a  constant 
parallelism  between  crimes  against  persons  and  crimes  against  property. 
Lux  ("  Archiv  fiir  soziale  Gesetzgebung",  1892,  p.  277  ff.),  on  his  side,  has 
established  the  fact  that  in  Germany  economic  depression  has  not  only 
added  to  the  crimes  against  property  but  also  to  those  against  morality, 
by  rendering  classes  less  resistant  to  deleterious  impulses.  Cf.  also  the 
striking  remarks  of  Tarde,  "La  criminalite  comparee",  Paris,  1886, 
pT).  66-72  [and  Bonger,  "  Criminality  and  Economic  Conditions  "  (Modern 
Criminal  Science  Series,  Boston,  1916).  —  Eds.]. 

2  "  Chaque  citoyen  possede-t-il  quelque  bien  dans  un  Etat,  le  desir  de 
la  conservation  est,  sans  contredit,  le  voeu  general  de  la  nation.  Le 
grand  nombre,  au  contraire,  y  vit-il  sans  propriete,  le  vol  devient  le  voeu 
general  de  cette  m^me  nation"  (Helvetius,  "De  I'homme",  sect,  vi,  eh. 
vii).  See  on  this  subject  Ferri' s  excellent  work,  "Sociologia  criminale", 
Turin,  Bocca,  1892,  p.  246  [translated  in  the  Modern  Criminal  Science 
Series,  Boston,  1917. —  Eds.]. 


Chap.    VIII.]  ECONOMIC   FOUNDATIONS   OF    LAW  263 

conditions  exert  a  corrupting  influence  upon  morals,  not  only- 
through  an  excess  of  misery  but  also  by  a  superabundance  of 
wealth.  The  criminality  of  the  rich  is,  therefore,  not  so  in- 
dependent of  the  influence  of  the  economic  environment  as  one 
would  think. 

But  the  anthropologists  insist  —  and  their  argument  is  the 
strongest  of  all  —  upon  the  existence  of  a  distinct  criminal  class, 
made  up  of  born  criminals.  These  natural  criminals  are  driven 
to  crime,  they  say,  by  reason  of  their  physiological  constitutions, 
and  no  mere  change  in  economic  environment  could  accordingly 
have  any  ameliorating  effect.^  These  attempts  to  deduce  crim- 
inal phenomena  from  anthropological  antecedents  give  evidence, 
however,  of  an  incomplete  study  of  the  facts.  A  more  independent 
examination  of  the  subject  will  show  that  these  phenomena,  in- 
stead of  being  the  result  of  individual  causes,  are  rather  the  outcome 
of  general  conditions  acting  upon  society  as  a  whole.  And  a  little 
further  study  must  convince  even  those  who  wish  to  premise  a 
criminal  type,  that  the  physical  characteristics  of  the  criminal 
are  by  no  means  the  product  of  natural  and  unavoidable  necessity, 
but  rather  the  work  of  economic  causes  that  have  operated  long 
enough  to  bring  about  degeneration  in  the  criminal  or  in  his  an- 
cestors. Prolonged  poverty,  hard  labor  performed  by  women 
during  the  period  of  pregnancy,  malodorous  and  unhealthful 
dwellings,  insufficient  and  anti-hygienic  alimentation,  alcoholism 
(the  fatal  corollary  of  idleness  among  the  rich  as  well  as  among 
the  poor),  spasmodic  work  for  varying  and  uncertain  wages,  the 
dissolvent  influences  of  indolent  and  inactive  wealth  —  all  these 
prepare  the  way  for  deep  degradation  which,  lasting  through  a 
number  of  generations,  can  perfectly  well  manifest  itself  in  external 
characteristics  and  anthropological  anomalies,  inevitably  leading 
to  crime.  Criminal  anthropologists,  and  in  particular  their  illus- 
trious master  Lombroso,  look  no  farther  than  the  asymmetrical 
cranium,  or  the  projecting  ear,  or  epilepsy,  and  attribute  crimi- 
nality to  these  factors.  The  imperfection  of  the  logical  process  is 
apparent,  for  it  does  not  inquire  into  the  causes  that  led  to  the 
asymmetrical  skull  and  the  other  anthropological  peculiarities, 
which  they  are  content  to  regard  as  mysterious  phenomena  derived 
from  some  atavic  reversion  more  mythical  than  the  Indian  Tri- 

^  Mayheio  has  remarked  :  "It  is  noticeable  that  the  dangerous  classes 
of  our  cities,  who  are  indeed  vagabonds  and  savages,  present  the  same 
anthropological  characteristics  as  nomad  tribes,  like  the  Kafirs,  the 
Fellahs,  etc. ;  and  especially  in  that  their  skulls  show  a  large  development 
of  the  jaw-bone"  ("London  Labour  and  London  Poor",  p.  4). 


264  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

murti.  The  theory  fails,  in  short,  to  recognize  that  these  an- 
thropological phenomena  constitute  simply  the  last  detritus  and 
external  indications  of  a  long  erosive  process  worked  out  by  eco- 
nomic conditions,  mercilessly  operating  upon  human  life. 

Crime  being  a  morbid  emanation  of  capitalistic  conditions, 
tends  to  interfere  with  their  normal  functions,  and  the  punish- 
ment of  crime  is  thus  the  legal  means  employed  to  consolidate 
and  protect  these  same  relations.  Penal  sanctions  have,  accord- 
ingly, followed  the  alternate  prevalence  of  the  different  forms 
of  ownership  and  favored  the  entire  evolution  of  property.  Thus 
an  agricultural  state  metes  out  its  heaviest  penalties  to  crimes 
against  landed  property,  while  a  commercial  state  punishes  most 
severely  the  crime  of  issuing  false  money.  Severity  against  theft, 
again,  is  an  indication  of  the  prevalence  of  movable  over  fixed 
property.  For  this  reason  primitive  Roman  law  proceeded  with 
great  severity  against  thieves,  while  under  the  code  of  Justinian 
the  rigor  of  the  early  law  was  considerably  modified.  And  in  gen- 
eral each  state  proceeds  most  severely  against  the  crimes  that 
injure  its  predominant  interests.^ 

But  though  the  law  varies  thus  in  its  predilections  toward 
different  forms  of  property  at  different  epochs,  it  is  nevertheless 
always  constant  in  its  partiality  toward  proprietors.  It  is,  in- 
deed, scarcely  necessary  to  insist  upon  this  point,  as  the  best 
criminalists  have  already  vigorously  denounced  the  essentially 
capitalistic  character  of  the  law  of  punishment,  with  its  constant 
solicitude  for  the  privileges  of  property  and  its  total  abandon- 
ment of  the  poorer  classes.  To  be  sure,  jurists  now  recall  with 
indignation  that  under  the  Salic  law  the  punishment  for  the 
theft  of  animals  was  visited  more  severely  upon  the  poor  than 
upon  the  rich ;  ^  some  sociologists  also  regard  it  as  an  enormity 
that  savages  should  punish  theft  more  severely  than  homicide ;  * 
and  an  Italian  traveler  has  recently  recounted  with  horror  how 
theft  and  brigandage  go  unpunished  among  the  Somali  if  com- 
mitted on  a  large  enough  scale.  But  when  we  notice  what  is 
going  on  round  about  us,  honesty  compels  us  to  admit  that, 
in  the  matter  of  legal  morality,  we  Europeans  are  not  much  above 

^Wilman,  "Die  Rezeption  des  romischen  Rechts  und  die  sozialle 
Frage",  Leipzig,  1890,  p.  40. 

^Glasson,  "Histoire  du  droit  [etc.]  de  la  France",  1887,  ii.,  p.  567. 
Among  the  Marea,  likewise,  an  African  tribe,  the  thief,  if  he  be  a  noble, 
is  only  obliged  to  return  the  thing  stolen ;  but  if  he  be  a  man  of  the  people, 
he  is  condemned  to  give  up  everything  that  he  possesses  {post,  loc.  cit.^ 
ii,  p.  89). 

^ De  Greef,  "Introduction  a  la  sociologie",  Brussels,  1886,  II,  267. 


Chap.    VIII.]  ECONOMIC    FOUNDATIONS   OF   LAW  265 

the  Somali.  Pelegrino  Rossi  has,  indeed,  deplored  the  fact  that 
in  a  civilized  country  like  England  the  indulgence  of  the  law  toward 
assassins  should  offer  so  striking  a  contrast  with  its  severity  toward 
thieves.  But  the  same  contrast  is  to  be  met  with  among  all  modern 
nations,  and  the  system  of  punishments  generally  in  force  in  the 
most  civilized  countries  of  the  world  certainly  deserves  no  less 
decisive  condemnation.  Bismarck  also  deplored  the  fact  that 
in  matters  of  money  the  law  shows  an  absolute  rigor,  contrasting 
strangely  with  its  relative  indifference  to  questions  of  health, 
life,  and  honor.  The  Italian  code,  likewise,  inflicts  very  severe 
penalties  upon  theft  and  proceeds  with  vigor  against  strikers; 
while  it  treats  with  manifest  indulgence  a  large  number  of  crimes 
especially  characteristic  of  the  richer  classes.  On  this  point  the 
learned  criminalist  Ellero  has  expressed  himself  as  follows :  '*  Theft 
under  certain  aggravating  circumstances  has  to  be  expiated  by 
twenty  years  in  the  galleys,  while  for  swindling  five  years  in 
prison  suffice,  one  year  is  the  penalty  for  violation  of  the  domicile, 
and  six  months  for  outrages  of  chastity,  while  under  certain 
cu'cumstances  these  crimes  are  merely  punished  by  a  fine  of  five 
hundred  francs.^  I  understand  full  well  that  swindlers  deserve 
all  the  consideration  possible  —  especially  when  they  become 
millionaires  —  but  it  would  seem,  nevertheless,  as  though  domestic 
peace  and  modesty  —  even  though  these  things  are  good  only 
for  the  miserable  —  should  be  rated  a  little  higher  than  five 
hundred  francs.  And  how  does  it  happen  that  the  petty  thief 
has  to  expiate  a  fault  that  may  presuppose  great  degradation, 
but  not  necessarily  perversity  of  character,  much  more  severely 
than  the  dastard  who  tramples  upon  the  most  sacred  joys  of 
humanity.  In  short,  the  entire  civil  code  is  in  favor  of  the  rich 
and  in  opposition  to  the  poor;  it  guarantees  the  bourgeoisie  and 
abandons  the  proletariat."  P.  Rossi  also  has  remarked :  **  The 
upper  classes  of  society  simply  look  upon  criminal  justice  as  an 
instrument  to  be  directed  against  those  whom  they  speak  of  as 
the  multitude  or  herd  —  in  other  words,  the  people,"  ^  and  a 
writer  of  our  day  concludes :  *'  The  office  of  criminal  law  up  to 
the  present  has  not  been  to  protect  society  as  a  whole  with  all 
the  various  classes  that  compose  it,  but  more  particularly  to  de- 

^  These  facts  are  taken  from  the  penalties  laid  down  in  th©  Sardinian 
Code.  The  new  Italian  Code  has  reduced  the  punishment  for  felonious 
theft  to  eight  years  of  confinement,  and  raised  the  penalty  for  outrage 
of  chastity  and  for  violation  of  the  domicile  to  thirty  months. 

2  1  borrow  these  quotations  from  Colajatmi's  substantial  book  on 
"Criminal  Sociology",  Catania,  1889,  Vol.  II,  pp.  648,  658-61. 


266  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

fend  the  interests  of  those  under  the  favor  of  the  constituted 
political  authority,  or  in  other  words,  the  proprietors."  ^ 

Thus  under  all  its  varied  forms  the  law  constitutes  a  very 
powerful  means  of  preventing  reaction  among  laborers  and  of 
assuring  the  continued  existence  of  property.  It  follows  from 
this  that  the  decomposition  of  the  capitalistic  economy  must 
involve  a  corresponding  crisis  in  the  legal  system.  At  every 
period  of  social  decomposition  a  dissolvent,  accordingly,  works 
its  way  into  the  law  and  changes  its  elements. 

To  sum  up  in  a  few  words  what  we  have  set  forth  in  this  portion 
of  our  work :  the  law  is  really  derived  from  economic  conditions, 
and  it  is  only  in  the  light  of  the  latter  that  we  are  able  to  under- 
stand the  genesis  of  legal  sanctions,  the  history  of  the  law,  and 
the  real  structure  of  its  various  institutions;  the  law  is  also  a 
monopoly  of  wealth,  and  in  the  temple  of  Themis  there  is  no  place 
reserved  for  the  laborer. 

1  Vaccaroy  "Genesi  e  funzione  delle  leggi  penali !',  Rome,  1889,  p.  101. 


C  — BIOLOGIC   FACTORS 

Chapter   IX 
ANIMAL  SOCIETIES  AND  PRIMITIVE  HUMAN  SOCIETIES 


§  1. 

§  2. 

§  3. 

§  4. 

§  5. 

§  6. 

§  7. 

§  8. 

§  9. 

§  10. 


Nature  of  Society. 

Society  is  Vital  Expansion. 

Society  a  Permanent  Associa- 
tion. 

Forms  of  Imperfect  Associa- 
tion. 

Features  of  Rudimentary  An- 
imal Groups. 

Characteristics  of  Society. 

Societies  Based  on  Family 
Life. 

Paternal  Domestic  Societies. 

Monogamous  Societies. 

Larger  Social  Groups. 


§11. 
§-12. 
§13. 

§14. 
§15. 

§16. 


§17. 

§18. 


Mammals. 

Types  of  Family  Union. 

Societies  Based  on  a  Life  of 
Relation. 

Superior  Vertebrates. 

Function  of  the  Male  in 
Social  Life. 

Animal  Societies  Analogous 
to  Primitive  Human  Socie- 
ties. 

Chieftainry  in  Animal  Socie- 
ties. 

Conclusion. 


§  1.  Nature  of  Society.  Society  in  its  highest  and  most  com- 
plicated manifestation,  that  is  to  say,  human,  political  society, 
appears  as  a  complete  whole,  having  a  purpose  of  its  own,  an 
entity,  and,  as  we  may  say,  living  being.  Recent  investigation 
in  sociology  has  brought  to  light  this  view  of  society,  which,  more- 
over, is  that  of  the  law  and  political  science.  But  society  regarded 
as  an  "  irreducible  phenomenon  sui  generis  ",  using  the  language 
of  Comte,  involves  a  series  of  problems  analogous  at  foundation 
to  those  which  are  met  in  the  study  of  man  as  an  individual,  con- 
sidered as  an  intelligent  being.  Are  the  physiological  and  psy- 
chological bases  of  human  society  absolutely  specific?  Is  not 
social  philosophy,  after  all,  a  complete  or  incomplete  natural 
philosophy  ? 

§  2.  Society  is  Vital  Expansion.^  [Societies  are  products  of 
relations  of  individuals.     The  primary  base  of  the  social  phe- 

^  [By  Adolfo  Posada,  Professor  of  Comparative  Municipal  Law, 
Facultad  de  Derecho  y  de  Ciencias  Sociales,  Universidad  Central  de 
Espaiia  (Madrid).  Translated  from  "  Annales  de  I'lnstitut  International 
de  Sociologie"  (Paris),  Vol.  Ill,  pp.  271-318;  by  Albert  Kocourek.] 

2  (The  bracketed  text  which  follows  is  a  condensed  free  translation  of 
(original)  pp.  272-290.] 

267 


268  FACTORS   OF   LEGAL  EVOLUTION  [Part   II. 

nomenon  rests,  as,  moreover,  does  every  vital  phenomenon,  on 
the  necessity  (Guyau  calls  it  the  tendency)  of  expansion.  Society, 
in  effect,  is  a  great  combination  of  vital  expansions ;  it  is  the  re- 
sultant of  all  the  needs  experienced  by  the  individuals  which 
compose  it.  Social  instinct  and  reflex  social  will  are  the  forms  of 
manifestation  of  individual  activity  tending  to  the  satisfaction  of 
wants  which  the  individual  is  not  able  to  provide  for  alone. 

Social  (or  in  Spencerian  terminology,  super-organic)  evolution 
should  not  be  limited  to  human  societies.  The  concept  of  sociality 
cannot  be  fully  exploited  by  a  study  simply  of  superior  verte- 
brates. On  the  contrary,  Espinas  ^  (relying  on  Aristotle)  points 
out  the  correct  principle  —  '^  to  study  living  phenomena  by  com- 
mencing with  the  most  rudimentary,  is  to  adopt  in  politics,  as  in 
all  the  sciences,  the  best  method."  Or,  as  Letourneau  ^  has 
put  it,  ''  the  study  of  human  sociology  logically  ought  to  have 
as  preamble,  a  corresponding  study  of  animal  sociology."] 

§  3.  Society  a  Permanent  Association.  [Society  as  designation 
of  a  concrete  object  is  properly  confined  to  that  form  called  by 
Spencer  super-organic ;  although  animal  life  may  be  described  in 
terms  which  confuse  it  with  society.^  Society  in  an  exact  sense 
implies,  as  Espinas^  has  remarked,  "  the  idea  of  a  permanent  as- 
sociation which  isolated  living  beings  employ  for  common  action." 

It  is  necessary  to  be  on  guard,  as  Letourneau  has  pointed  out, 
against  an  excessive  extension  of  sense  which  may  be  given  to  the 
term  society.  ''  Some  sociologists,"  says  the  author,^  ''  especially 
those  who  have  studied  animal  societies,  frequently  have  con- 
founded the  notion  of  society  with  the  simple  fact  of  grouping.  .  .  . 
The  idea,  society,  implies  necessarily  active  and  conscious  union." 
Moreover,  a  society  tends  always  to  establish  reciprocal  influence 
among  its  members  until  it  acquires  (apparently  contrary  to  the 
fact)  genuine  and  effective  existence  in  concrete  form.  It  is  for 
this  reason  that  we  regard  societies  as  real,  as  living  organisms; 
a  society  being  the  more  perfect,  as  we  find  in  it  more  of  the 
features  proper  to  an  organism.  Human  societies  thus  justly 
are  entitled  to  be  called  actual  persons.^ 

1  "Des  Societes  animales",  p.  121. 

2  "L'fivolution  du  mariage  et  de  la  famille",  p.  3. 

3  This  view  has  inspired  many  sociologists  who  from  this  standpoint 
reason  by  analogy ;  thus,  Spencer,  Schaeffle,  Lilienfeld,  Fouillee. 

^  "Des  Societes  animales",  p.  157. 

5  "L'Evolution  politique",  p.  3. 

8  Suggesting  in  philosophy  the  "organic  tendency  which  is  very  promi- 
nent in  Schelling  and  in  Krause.  Its  antecedents  are  found  in  Plato  and 
in  Aristotle. 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN   SOCIETIES  269 

Even  though  the  term  society  implies  the  conditions  stated,  if 
we  find  in  an  examination  of  the  nature  of  social  phenomena  cer- 
tain manifestations  of  imperfection,  but  yet  including  any  of  the 
essential  elements,  they  will  be  serviceable  in  arriving  at  the  idea 
of  society.  As  we  have  already  said,  the  characteristic  and 
fundamental  feature  of  any  society  is  a  permanent  association  of 
individual  efforts  tending  to  the  realization  of  a  common  purpose. 
At  that  moment  there  is  the  beginning  of  what  Espinas  calls  "the 
life  of  the  many  "  which  implies  the  presence  of  beings  contribut- 
ing to  this  life  and  rendering  reciprocal  services  which  are  the 
unique  means  of  complete  satisfaction.] 

§  4.  Forms  of  Imperfect  Association.  [Among  groups  of  beings 
which  exhibit  certain  features  of  permanence  and  which  are  not 
perfect  associations,  but  rather  material  unions  of  advantage  on 
one  side,  or  perhaps  on  both,  we  may  note  those  called  by  Es- 
pinas "abnormal"  societies.  They  embrace  the  following  types: 
1,  parasitism ;   2,  commensalism ;   3,  mutualism ;  4,  domesticism. 

1.  These  four  kinds  of  union  are  phases  of  increasing  social 
differentiation.  It  is  difficult  to  see  an  association  in  parasitism. 
The  host  of  the  parasite  does  not  receive  any  direct  benefit  from 
the  service  which  he  renders  to  the  parasite. 

2.  The  commensal  has  a  more  independent  existence.  We  notice 
here  the,  beginning  of  the  idea  of  cooperation.  Commensalism 
has  numerous  degrees  from  the  case  where  the  purveyor  invites 
in  the  relation  a  serious  danger  to  himself,  to  those  instances 
where  a  kind  of  service  is  rendered  by  the  commensal  when  he 
is  nourished  by  life  or  by  substances  noxious  for  the  purveyor. 

3.  From  the  moment  that  cooperation,  however  imperfect, 
appears,  there  is  mutualism.  *Here  the  social  form  is  most  ex- 
plicitly shown ;  and  here,  the  idea  of  society  has  its  base.  The 
determining  cause  of  society  is  the  necessity  of  a  life  of  relation- 
ship which  fulfills  the  object  of  each  member.  In  combination, 
these  ends  beget  appropriate  functions,  and  develop  special  or- 
gans. In  mutualism  we  find  a  rough  outline  of  a  society,  neces- 
sity and  cooperation ;  but  there  is  wanting  a  life  of  relationship 
which  in  the  long  run  brings  about  a  social  state  with  appropriate 
functions  and  forms.  Generally,  the  unions  of  mutualism  are 
occasioned  by  resulting  advantages,  but  there  is  lacking  a  reci- 
procity of  services  habitually  rendered.  Says  Espinas,  "  the 
members  unite  in  the  form  of  mutualism  by  force  of  identity  of 
their  desires  and  fears."  For  this  reason,  in  these  unions,  it  is  of 
little  significance  whether  the  members  are  of  the  same  species. 


270  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

It  is  enough  that  there  is  among  them  no  cause  of  rivalry.  Most 
frequently,  this  rudimentary  social  form  is  seen  among  birds  which 
unite  for  the  advantage  which  large  numbers  provide  against 
dangers. 

4.  Domesticism  creates  special  relations  among  its  members.  It 
is  superior  to  mutualism  because  there  is  found  in  it  the  organizing 
social  element  in  a  more  advanced  and  more  complex  form.  This 
relation  involves  (except  at  its  beginning)  in  effect  an  exchange  of 
services;  but  it  is  only  when  the  animal  has  become  completely 
domesticated,  to  the  point  where  it  transmits  its  character  by 
heredity,  that  there  is  created  the  most  perfect  social  form  which 
may  exist  between  creatures  of  different  species.] 

§  5.  Features  of  Rudimentary  Animal  Groups.  [Without  at- 
tempting here  a  psychological  analysis  of  animal  life  the  following 
points  may  be  noted : 

1.  The  ideal  progress  attained  in  an  evolution  from  the  rudi- 
mentary forms  of  society,  from  our  point  of  view  of  the  character 
of  social  life.  It  appears  that  proceeding  from  a  union  on  a  purely 
material  basis  there  is  reached  by  successive  degrees  a  type  of 
selected  and  rational  union. 

2.  The  correlation  which  exists  between  the  different  forms  of 
incomplete  societies  and  the  psychological  nature  of  the  beings 
which  constitute  them.  It  suffices  to  compare  the  individuals 
living  in  a  state  of  parasitism  with  those  in  a  state  of  domesticism. 

3.  The  obstacles  presented  in  these  incomplete  or  imperfect 
unions  by  the  diversity  of  species  which  constitute  them.  But 
for  such  obstacles,  they  would  be  true  societies.  In  the  first 
three  imperfect  unions,  utility  is  the  dominant  cause ;  in  the  fourth, 
sympathy  plays  a  certain  part.  Utility  and  sympathy  are  needs 
which  cannot  be  satisfied  except  in  a  union  more  or  less  social. 

4.  The  internal  forces  which  determine  the  formation  of  these 
unions,  and  which  (important  to  note)  are :  (a)  purely  unilateral 
egoistic  utility  (among  parasites) ;  (b)  inoffensive  egoistic  utility ; 
(c)  reciprocal  utility;  (d)  domination  of  the  stronger  or  more 
intelligent  (man  and  perhaps  ants)  resulting  in  reciprocal  utility. 

These  are  the  great  forces  of  life.  Human  society  even  in  its 
most  complicated  forms  is  based  on  these  elementary  energies  of 
the  four  imperfect  societies.  There  are,  in  fact,  forms  of  human 
society  in  which  the  pure  egoism  of  the  parasite  may  be  seen ; 
others  disclose  the  appearance  of  commensalism ;  and,  again,  in 
others,  the  dual  interest  of  reciprocal  utility  dominates.  There 
are  finally  more  elevated  forms  in  which  domesticism  disappears 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN   SOCIETIES  271 

replaced  by  coercive  subordination,  and  from  which  there  arises 
a  union  based  on  moral  and  disinterested  sympathy.] 

§  6.  Characteristics  of  Society.  [Society,  whether  of  the  true 
sort,  or  whether  in  its  imperfect  forms,  is  a  vehicle  for  the  sat- 
isfaction of  the  essential  necessities  of  the  beings  which  constitute 
it.  If  it  is  asked,  what  is  the  cause  of  the  tendency  which  brings 
satisfaction  by  the  aid  of  social  organization,  we  are  forced  to  resort 
to  instincts  which  produce  sociability.  Without  attempting  to 
investigate  the  psycho-physiological  nature  of  instinct,  we  may 
state  among  many  others,  the  following  elements  disclosed  by 
examination  of  the  mechanics  of  social  facts : 

1.  An  aspiration,  a  need  of  a  being,  which  operates  in  such 
manner  that  all  the  manifestations  of  its  nature  depend  upon 
realization  of  the  need ; 

2.  A  constitutive  energy  of  a  being  which  permits  internal  sat- 
isfaction of  the  demands  of  its  nature ; 

3.  Concrete  external  movement; 

4.  A  realization  of  ends. 

A  society  is  supported  more  by  the  feeling  of  duty  than  by  that 
of  egoism ;  but  the  sympathy  which  in  a  developed  society  in- 
duces sacrifices,  and  the  performance  of  spontaneous  services,  is 
not  an  original  bond  in  the  evolution  of  society.  This  sympathy 
develops  with  the  course  of  time  from  social  relations.  The 
simpler  and  less  coherent  types  of  society,  brought  into  being  by 
fundamental  needs,  are  only  material  associations  based  on  the 
satisfaction  of  material  necessities.  The  altruistic  sentiment  of 
sympathy  becomes  a  special  psychical  need  and  development  of 
a  later  and  more  complex  form  of  society. 

Espinas  has  noted  three  basic  necessities  which  determine  the 
existence  of  a  society :  nutrition,  reproduction,  and  a  life  of 
relation.  This  idea  requires  that  societies  be  considered  as  true 
organisms  in  which  necessity  creates  function.  Of  these  three 
elements,  the  most  important  is  that  of  nutrition  which  is  uni- 
versal and  fundamental.  The  want  of  reproduction  is  not  so  ex- 
tensive, and  the  third  (a  life  of  relation)  presupposes  the  other  two 
wants  as  well  as  others  not  of  a  primary  character.] 

§  7.  Societies  Based  on  Family  Life.  [Unions  founded  on  the 
primary  need  of  reproduction  bring  about  a  constant  growth  of 
psychological  cohesion.  Of  the  infinite  gradations  of  forms  of 
family  unions,  Espinas  has  outlined  three  phases:  1.  conjugal 
societies  having  reproduction  as  their  sole  and  exclusive  ob- 
ject;   2.   maternal   domestic   societies    (for   example   among  in- 


272  FACTORS   OF   LEGAL   EVOLUTION  [Pakt   II. 

sects) ;  3.  paternal  domestic  societies  (fish,  reptiles,  birds,  mam- 
mals). 

These  societies  permit  an  imperfect  view  of  human  society. 
In  the  first  place,  the  most  important  phenomena  which  they 
present  are  sexual  attraction  which  brings  the  separate  sexes  into 
association  either  temporarily  or  for  definite  periods  of  time; 
and,  in  the  second  place,  the  love  of  offspring  which  determines 
the  institution  of  the  family.  In  some  societies  sexual  attraction 
is  the  dominating  force ;  in  others  it  is  the  tie  which  unites  mother 
and  offspring ;  and,  finally,  in  others,  it  is  fortified  by  the  appear- 
ance of  an  interest  in  the  male  for  his  offspring,  which  in  the  end 
is  transformed  into  sympathy  and  affection.^] 

§  8.  Paternal  Domestic  Societies.  The  domestic  societies 
where  the  male  parent  enters  as  a  factor  of  collective  life,  and 
not  merely  as  a  factor  of  sexual  union,  present  a  degree  of  socio- 
logical complication  in  advance  of  the  societies  already  considered. 

While  it  will  not  be  possible  here  to  enter  into  the  last  detail, 
it  is  desirable  nevertheless  to  point  out  the  different  stages  of 
paternal  intervention,  as  well  as  the  different  forms  of  domestic 
association  which  arise  from  the  various  relations  of  male  and 
female  (or  females).  Espinas  notes,^  with  reference  to  the  stages 
now  under  consideration,  that  the  intervention  of  the  male  parent 
produces  a  simple  form  of  social  structure  as  compared  with  the 
higher  forms  of  maternal  domestic  societies  (ants,  etc.).  The 
society  being  reduced,  says  he,  to  a  single  individual  who  by  his 
own  will  assures  the  future  of  the  offspring,  the  paternal  element 
absorbs,  as  it  were,  the  entire  family  from  the  moment  that  he  en- 
ters. But  observation  of  these  societies  should  not  be  limited 
to  the  simple  manifestations  of  the  paternal  function ;  it  is  neces- 
sary to  inquire  how  the  collaboration  of  the  male  and  female 
produces  an  organism  of  very  complicated  psychological  and 
physiological  relations. 

To  consider  only  the  most  conspicuous  facts,  a  very  remarkable 
phenomenon  is  established  of  which  human  societies  only  illus- 
trate a  particular  case.  This  is  the  accumulation  of  simultaneous 
social  functions  which  only  appear  in  inferior  societies  in  suc- 

1  [The  author  here  states  that  modern  investigations  with  reference  to 
conjugal  and  domestic  relations  among  animals  —  and  especially  among 
ants  and  bees  —  have  disclosed  not  only  the  texture  of  superorganie 
society  but  many  of  the  psychic  qualities  found  in  the  life  of  man.  In 
this  connection  he  recalls  the  well-known  observations  in  this  field  of 
Spencer  ("Principles  of  Sociology",  Vol.  I,  p.  9),  and  Lubbock  ("Ants, 
Bees,  and  Wasps",  1883,  "The  Senses  and  Instincts  of  Animals",  1891),] 

2  "Des  societes  animales",  p.  398. 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN   SOCIETIES  273 

cession,  ^^^le^e  the  sexes  are  separated  among  distinct  individuals, 
it  is  necessary  to  obviate  this  separation,  that  there  be  unions 
among  these  individuals.  But  in  certain  social  forms,  this  union 
does  not  endure.  Among  insects,  for  example,  the  male  grows 
indifferent  after  the  union,  and,  in  consequence,  the  female  alone 
maintains  social  connection  with  the  progeny.  Among  certain 
species  of  fish,  the  male  assumes  this  duty.  Beginning  with 
batrachians  and  birds,  the  paternal  and  maternal  functions  come 
together,  producing  a  very  complicated  social  synthesis,  and  a 
class  of  relations  and  of  forms  of  life  unknown  to  the  most  highly 
developed  societies  of  insects.  Relative  to  the  necessities  which 
determine  the  existence  of  a  society,  it  may  be  affirmed  of  the  more 
developed  levels  of  society,  as  already  suggested,  that  the  members 
of  each  group  experience  necessities,  invariably  in  combination, 
which  in  other  levels  occur  successively,  or  which  perhaps  do  not 
occur  at  all. 

Passing  over  the  species  of  animals  in  which  paternal  domestic 
society  is  limited  to  periods  of  impregnation  or  of  birth,  and  con- 
sidering only  those  where,  as  among  certain  reptiles  and  birds, 
social  cooperation  endures  for  the  nourishment  and  uprearing  of 
the  young,  we  find  a  constant  relation  to  exist  between  the  clearly 
defined  character  of  the  social  group  resulting  from  a  reduction  in 
its  membership,  and  the  high  intelligence  of  the  members.  For 
this  reason  social  life  gains  an  intensity  which  is  lost  in  extension 
hi  certain  types  such  as  domestic  societies.  It  happens,  never- 
theless, that  the  same  intensity  exists  in  groups  of  large  numbers, 
such  as  human  civilized  societies  which  in  consequence  must  be 
regarded  as  those  where  the  greatest  extensive  force  is  found 
united  with  the  greatest  intensive  power. 

§  9.  Monogamous  Societies.  But,  before  investigating  the  social 
synthesis  implied  by  humanity,  it  is  necessary  to  point  out  how  so- 
cieties based  on  family  reach  what  may  be  called  an  ideal  evolution, 
to  the  point  of  mauifesting  an  exclusive  tendency,  resulting  (as  in 
the  case  of  the  maternal  society,  among  ants  and  bees)  in  a  specific 
form  opposed  in  appearance  to  every  other  social  organization,  re 
sponding  to  special  needs,  and  presupposing  new  kinds  of  relations. 

To  this  purpose,  the  solution  of  certain  sociologists  may  be  stated, 
which  has  been  formulated  by  Letourneau  ^  as  follows :  "  there  is 
antagonism  between  the  family  instinct  and  establishment  of  large 
animal  societies."     Zanetti,  cited  by  Giraud-Toulon,^  inclines  to 

^  "L'Evolution  politique",  p.  22. 

*  In  his  study  entitled  "Origines  du  mariage  et  de  la  famille." 


274  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

the  same  opinion.  According  to  him,  the  most  remarkable  feature 
among  all  species  of  animals  is  that  where  the  society  is  highly  de- 
veloped, the  family  is  at  a  low  ebb ;  and  that,  on  the  contrary,  where 
the  family  is  characteristic  of  the  species,  the  instinct  of  sociality 
declines  to  the  point  of  complete  disappearance  in  certain  cases. 

It  does  not  seem  to  me  possible  to  speak  of  antagonism  between 
these  two  kinds  of  groups  when  distinct  species  are  concerned,  one 
having  the  instinct  of  family  union,  and  the  other  that  of  sociality. 
But  it  is  evident  that  the  two  instincts  may  clash  in  isolation,  or 
be  truly  combined  in  the  same  species.  Thus  the  domestic  so- 
ciety constituted  by  the  differences,  already  discussed,  of  the  two 
sexes,  and  maintained  by  the  tie  of  affection  for,  and  the  care  of, 
the  progeny,  is  found  among  birds,  particularly  parrakeets,  spar- 
rows, palmipedes,  etc.  It  may  be  affirmed  that  the  family  based 
on  the  elements  which  give  it  its  most  definitive  expression  among 
men,  that  is  to  say,  the  monogamous  family,  attains  its  highest 
development  and  its  greatest  perfection  among  these  species  of 
birds.  Also  sex  attraction  which  is  the  foundation  of  the  union 
of  male  and  female  and  which  is  the  stimulant  of  procreation,  is 
found  intensely  developed  among  certain  birds.  Furthermore, 
there  is  seen  among  them  the  second  essential  of  the  monogamous 
family,  the  love  of  offspring,  which  is  adequate  to  produce  a  life 
of  social  relations.  Bird  life  exhibits  remarkable  instances  of 
parental  education,  or  at  least  training,  of  the  young.  And  this 
is  not  all ;  monogamous  families  of  birds  in  certain  cases  have  a 
domicile,  or,  more  correctly,  an  abode  which  is  industriously  fash- 
ioned, frequently  with  extraordinary  complication.  There  is 
found,  therefore,  in  this  family,  material  expression  of  the  ex- 
ternal, due  to  the  combined  action  of  the  community  and  of  na- 
ture ;  the  second  aids  the  first  in  the  satisfaction  of  its  necessities, 
that  is  to  say,  the  need  of  property,  of  a  hearth. 

But  the  same  perfection  realized  in  the  monogamous  type  of 
family  society  resulting,  perhaps,  from  the  limitation  of  its  social 
wants,  appears  to  raise  an  obstacle  to  the  immediate  creation  of 
other  groups  based  on  ties  other  than  that  of  sexual  attraction,  or 
the  bond  of  blood.  Common  social  life  does  not  last  indefinitely 
among  birds.  Many  of  them  reunite  in  small  groups,  but  only 
temporarily ;  because,  at  the  mating  season,  couples  form,  isolate 
themselves,  and  create  a  family  equally  temporary.  In  fact,  as 
to  all  these  creatures,  it  is  found  that  there  is  wanting  the  psy- 
chological elements  which  permit  coexistence  of  a  life  of  relation 
and  family  life. 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN   SOCIETIES  275 

■  §  10.  Larger  Social  Groups.  The  monogamous  type  of  family, 
as  it  is  presented  in  its  highest  point  of  perfection,  does  not  favor 
the  immediate  institution  of  extended  societies  having  the  char- 
acter of  permanence  and  embracing  a  large  number  of  individuals. 
Many  sociologists  think  that  the  polygamous  type  is  necessary 
for  the  creation  of  a  social  form  more  extended,  more  adaptable, 
and  more  complex  than  that  of  the  domestic  family.  This  does 
not  imply,  however,  that  there  may  not  be  considerable  societies 
except  by  virtue  of  a  union  of  families.  Societies  are  formed  by 
causes  independent  of  the  domestic  bond  or  the  tie  of  blood  in  the 
life  of  relation  which  springs  into  being  in  response  to  the  necessity 
of  defense. 

Nevertheless,  the  societies  whose  sphere  of  action  extends  be- 
yond the  narrow  limits  of  the  family  and  which  become  really 
organized,  have  precisely  as  their  integral  elements,  family  groups ; 
and  the  greater  their  cohesion  and  their  complexity,  the  more 
persistent  and  more  clearly  defined  are  the  domestic  societies  of 
which  they  are  composed.  For  this  reason,  although  family  and 
society  seem  in  certain  instances  to  be  reciprocally  exclusive, 
this  fact  does  not  account  for  beings  whose  social  character  is 
such  that  they  may  synthetize,  by  an  accumulation  of  functions, 
social  ideas  which  in  principle  appear  to  be  unassimilable. 

§  11.  Mammals.  If  we  investigate  mammals,  we  shall  find 
that  in  spite  of  the  exclusively  maternal  nature  of  the  family  in 
many  species,  little  by  little,  by  a  process  of  evolution  hitherto 
unexplained,  the  role  of  the  male  increases  in  importance  and  be- 
comes specialized,  until  it  exercises  a  dominant  influence  upon  the 
group.  This  function  exactly  characterizes  the  social  life  of  mam- 
mals ;  and  it  is  that  which  gives  form  and  purpose  both  to  polyg- 
amy and  monogamy. 

It  may  be  concluded  from  this,  that  it  is  not  to  be  admitted 
without  reservation,  either  that  the  female  is  alone  the  base  of 
family  life,  that  the  male  is  an  obstruction  to  it,  or  that  the  male 
is  the  creator  of  social  life  in  the  horde  or  the  tribe. 

It  is  certain  that  among  many  mammals,  the  family  is  consti- 
tuted in  so  inconstant  a  fashion,  and  with  such  complete  absence 
of  relations  on  the  part  of  the  male  with  the  progeny,  that  the 
mother  alone  creates  domestic  society.  The  family  acquires  a 
more  definite  character  when,  even  though  temporarily,  the  male 
enters  in  it  as  an  integral  part.  What  we  have  discovered  among 
birds  is  found  again,  and  more  frequently,  among  mammals.  The 
intervention  of  the  male  as  we  shall  see  is  an  essential  condition 


276  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

which  completes  domestic  society  and  which  determines  its  dis- 
tinct forms. 

§  12.  Types  of  Family  Union.  Let  us  see  first  of  all  what  are 
these  forms.  On  one  hand,  we  see  the  male  by  reason  of  his  special 
situation  face  to  face  with  nature,  on  account  of  his  particular 
type  of  life,  the  force  with  which  jealousy  lays  hold  of  him,  the 
exclusive  and  limited  character  of  his  wants,  the  limited  and  con- 
crete nature  of  his  procreative  needs,  unite  with  a  single  female, 
thus  creating  a  monogamous  family.  On  the  other  hand,  per- 
haps by  reason  of  a  large  number  of  females,  the  necessity  of  large 
groups  for  purposes  of  defense,  the  male  unites  with  a  number  of 
females,  or  makes  them  his  own,  thus  establishing  polygamy. 

These  two  types  of  family  union  perhaps  have  not  as  large  an 
importance  as  is  claimed  by  certain  sociologists  (Letourneau, 
Zanetti,  etc.),  for  bringing  about  or  hindering  the  formation  of  the 
horde  or  the  tribe.  It  is  assuredly  not  easy  to  mark  out  a  relation 
of  dependence  between  the  more  and  less  in  the  development  of 
mental  faculties,  and  the  manner  in  which  each  individual  realizes 
his  social  life.  The  elephant,  which  is  perhaps  next  to  man  the 
most  intelligent  animal,  lives  in  small  groups  under  the  tyrannical 
dominion  of  a  leader.^  "  The  family  of  elephants,"  says  Brehm,^ 
*'  is  very  limited.  No  other  elephant  is  admitted.  The  leader 
is  the  most  prudent  member  of  the  band,  and  may  be  either  a 
male  or  female."  The  last  point  is  to  be  noted,  because  it  shows 
that  even  in  societies  based  on  sex  (e.g.  family  and  domestic 
societies),  a  necessity  distinct  from  the  need  of  reproduction  may 
be  the  predominant  tie  which  holds  the  members  together. 

It  is  necessary  to  recall,  as  pointed  out  by  Espinas,  that  there 
is  no  regular  order  in  the  creation  of  societies  among  mammals. 
"  The  most  strange  anomalies  are  presented  which  render  impos- 
sible all  sociological  classification,  unless  one  is  resolved  to  dis- 
regard all  that  is  accidental,  and  if,  at  the  same  time,  it  is  not 
admitted  that  the  relation  which  exists  between  social  aptitude 
and  organic  perfection  may  vary  considerably  under  the  influence 
of  accidental  causes.  Thus,  to  follow  the  genealogical  classifica- 
tion of  Haeckel,  the  hippopotamus  is  probably  monogamous  and 
the  ancestors  attributed  to  it  were  polygamous ;  deer,  which  are 
closely  related  to  goats,  and  are  at  least  of  the  same  ancestors  as 
reindeer,  show  the  same  differences,  but,  in  this  case,  inversely; 

1  Darwin,  "Descent  of  Man." 

2  Espinas  remarks  that  the  word  family  here  has  a  very  indefinite 
meaning;  "Des  societes  animales",  p.  449.  See  Brehm,  "Vie  des  ani- 
maux",  No.  2,  p.  172. 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN  SOCIETIES  277 

and  the  peccary  with  white  jaws  lives  in  troops  while  the  ring- 
necked  peccary  lives  in  couples."  ^ 

According  to  Topinard,^  "  the  gorilla  and  the  chimpanzee  are 
monogamous  and  very  jealous  of  the  fidelity  of  their  spouses." 
Espinas  remarks  that  like  man,  certain  chimpanzees  are  monog- 
amous, and  others  are  polygamous,  which  is  confirmed  by  Hart- 
mann  at  least  so  far  as  concerns  the  diversity  of  social  forms  among 
simians.  "  The  chimpanzee,"  says  he,^  "  lives  in  isolated  families, 
or  in  groups  of  a  number  of  families." 

In  view  of  these  facts,  it  is  not  adventurous  to  affirm  that  domes- 
tic societies  are  determined  in  large  part  by  the  father,  or  rather 
by  the  male ;  that  is  to  say,  by  his  procreative  nature,  and  by  the 
circumstances  in  which  his  desire  of  reproduction  and  his  capacity 
to  communicate  it,  are  manifested.  Moreover,  it  may  be  stated, 
that  these  forms  do  not  have  a  decisive  importance  in  the  creation 
of  the  horde,  or  in  influencing  or  obstructing  its  formation. 

§  13.  Societies  Based  on  a  Life  of  Relation.  This  brings  us  to 
consider  social  life  extended  to  a  relational  degree.  If  it  should 
be  admitted  that  the  horde  or  the  tribe  is  constituted  of  polyg- 
amous and  not  monogamous  families,  it  will  be  proved : 

1.  That  among  vertebrates  inferior  to  man  there  is  absolute 
incompatibility  between  the  monogamous  family  and  the  horde, 
by  virtue  of  which  no  monogamous  animal  can  become  a  part  of 
the  horde ; 

2.  That  the  establishment  of  the  horde,  based  on  ties  distinct 
from  those  of  blood,  arises  directly  either  from  a  natural  extension 
of  the  polygamous  family,  or  from  a  union  of  different  polygamous 
families. 

It  falls  to  remark  that  among  animals  a  sufiicient  reason  for  the 
family  is  the  procreative  desire ;  and  that  among  superior  verte- 
brates the  family  is  already  established  and  maintained  by  the 
force  of  jealousy,  which  perhaps  isolates  it,  and  by  virtue  also  of 
the  power  with  which  the  male  asserts  and  defends  his  sexual 
claims ;  it  being  of  course  understood  that  it  is  the  maternal  func- 
tions of  the  female  which  give  to  the  family  its  great  cohesion. 
It  may  further  be  said,  that  this  adequate  reason  for  the  existence 
of  the  family  holds  as  well  for  the  polygamous  as  for  the  monog- 
amous family. 

The  horde  and  the  tribe,   societies  composed  of  individuals 

1  "Des  soci^t^s  animales",  p.  443. 

2  "Anthropologie",  p.  163. 

3  "Les  singes  anthropoides  et  rhomme",  p.  179. 


278  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

which  are  not  united  by  the  bond  of  blood,  presuppose  a  union 
created  under  an  influence  of  the  moment  or  repeated  because  of  a 
necessity  which  affects  all  the  members  from  a  similarity  of  interest. 
Permanent  unions  of  individuals  belonging  to  different  species 
arise  from  the  same  cause,  as  do  likewise  those  wholly  accidental 
unions  which  spring  up  from  external  causes,  where  more  or  less 
permanently,  they  attempt  to  satisfy  a  necessity.  In  order  to 
explain  the  relations  between  family  types  already  established, 
and  the  more  extended  forms  of  society,  it  is  necessary  to 
consider  the  nature  of  the  necessity  of  each  group,  as  well  as  the 
manner  in  which  the  want  is  experienced  by  the  members  of  these 
unions. 

Sometimes  the  procreative  instinct  and  that  of  affection  for 
offspring  are  opposed  to  needs  which  determine  and  perpetuate 
extended  social  formations ;  sometimes  they  are  harmonized  with 
them ;  and,  again,  sometimes  they  simply  coexist.  Let  us  note 
that  in  the  solution  of  these  conflicts,  it  makes  little  difference 
whether  the  members  are  monogamous  or  polygamous.  Neither 
is  it  allowable  to  say  that  the  male  produces  social  life  and  that 
the  female  creates  the  family.  Without  doubt,  the  opposition 
which  exists  between  the  creative  necessities  of  the  family  and 
those  which  establish  society,  is  one  of  the  most  general  phenomena 
of  the  animal  world  with  the  exception  of  superior  species.  Among 
birds  and  mammals,  we  find  societies  constituted  of  monogamous 
families  which  are  successively  created  and  which  are  mutually 
exclusive,  and  societies  made  up  of  polygamous  families. 

There  are  many  kinds  of  birds,  the  birds  of  the  sea,  which 
live  in  troops  during  the  period  of  reproduction,  and  education  of 
the  young.  This  is  the  explanation  of  those  aggregations  of  birds 
which  spread  over  the  countries  of  the  north  and  over  deserted 
islands.  These  societies  are  not  organized  and  permanent.  But 
it  is  seen  that  harmony  is  produced  here  among  wants  because 
these  birds  have  found  that  they  are  better  able  to  resist  an  enemy 
by  union  of  their  forces,  and  that  they  are  more  easily  able  to 
procure  food.  Probably,  also,  a  more  harmonious  distribution 
of  the  sexes  contributes  there  in  hindering  the  forcible  display  of 
jealousy.  Most  birds,  although  they  unite  and  live  in  groups 
more  or  less  extensive,  separate  from  the  group  at  the  mating 
season.  Those  birds  which  organize  into  monogamous  families 
with  a  kind  of  exclusivism,  have  not  yet  attained  the  psychological 
development  which  permits  others  to  bring  their  wants  to  a 
common  point  at  these  fixed  periods ;  but  when  the  mating  season 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN   SOCIETIES  279 

is  over  there  is  no  hindrance  to  the  formation  of  social  groups  for 
a  life  of  relation  of  interest. 

Among  mammals,  for  the  very  reason  that  they  are  animals 
of  greater  physiological  and  psychological  perfection,  there  is 
seen  in  the  superior  species,  excluding  man,  a  situation  which  im- 
plies a  certain  incompatibility  between  the  monogamous  type 
and  the  composition  of  the  horde.  In  the  first  place,  we  may  call 
attention  to  the  wolf  which,  as  stated  by  Brehm,  lives  alone  or  in 
couples  in  the  spring,  in  families  during  the  autumn,  and  in  troops 
of  greater  or  lesser  size  in  the  winter,  according  to  the  nature  of  the 
country  and  the  abundance  of  game.  In  the  spring,  when  two 
of  these  animals  are  encountered  they  are  usually  male  and  female ; 
when  they  are  seen  in  groups,  the  males  are  more  numerous  than 
the  females ;  and  when  they  are  united  in  large  troops,  all  operate 
in  common  giving  to  each  other  reciprocal  assistance.^ 


§  14.  Superior  Vertebrates.  A  study  of  the  social  life  of  su- 
perior vertebrates,  for  our  purpose,  has  greater  interest  than  the 
facts  already  examined.  Even  if  we  do  not  consider  them  as 
ancestors  of  man,  they  present  the  most  indisputable  and  the  most 
striking  analogies  to  him  equally  from  the  physiological  and  from 
the  psychological  point  of  view. 

The  different  species  of  anthropoid  apes  (gorilla,  orang-outang, 
chimpanzee,  gibbon)  show  notable  differences  according  to  the 
intensity  of  their  social  life.^  Brehm  says  that  they  unite  in  large 
troops.  It  appears,  however,  that  at  the  beginning  these  troops 
are  not  always  large,  that  they  do  not  always  have  as  their  element 
the  same  family  type,  and  that  the  same  species  does  not  always 
have  complete  uniformity  of  social  habits.  It  seems  that  social 
organization  depends  largely  upon  external  conditions.  Accord- 
ing to  Hartmann,  the  gorilla  creates  a  community  consisting  of  the 
father,  the  mother,  and  of  the  young  in  variable  number,  who 
live  in  the  most  impenetrable  part  of  the  forest. 

Savage  says  that  the  gorilla  lives  in  troops  not  so  large  as  among 
chimpanzees.  In  each  of  them  the  females  are  more  numerous 
than  the  males.  The  male  gorilla,  according  to  Houzeau,^  sur- 
rounds himself  with  a  certain  number  of  females  and  of  young 
gorillas.     I  have  already  shown  the  opinion  of  Hartmann  on  the 

1  Brehm,  "Vid  des  aniraaux",  Vol.  T,  p.  28  (Spanish  translation). 

2  See  the  works  of  Brehm,  Darwin,  Hartmann,  E spinas,  and  Houzeau. 

3  "Faculties  mentales  des  animaux",' Vol.  II,  p.  388. 


280  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

chimpanzee  which  lives  sometimes  in  isolated  families  and  at  other 
times  in  small  groups  of  many  families.  "One  cannot  say," 
writes  Savage,  "  that  the  chimpanzee  lives  in  society,  because 
only  rarely  five,  or  ten  at  the  most,  are  seen  together.  Supported 
by  the  most  reliable  witnesses,  I  am  able  to  state  that  when  they 
unite  in  larger  groups,  it  is  for  the  purpose  of  play.  One  of  the 
persons  whom  I  interrogated  assured  me  that  he  had  seen  on  an 
occasion  about  fifty  together  who  were  diverting  themselves  with 
joyous  cries  and  in  beating  the  drum  upon  the  old  trunks  of  trees. 
The  orang-outang  is  less  sociable.  Wallace  declares  that  he  has 
never  seen  two  adults  together.  However  the  male  and  female  are 
sometimes  accompanied  by  a  considerable  train  of  young."  ^ 

According  to  Miiller  and  Schlegel  the  old  males  live  in  isolation 
except  at  the  mating  period.  The  adult  females  and  the  young 
males  unite  in  a  troop  of  two  or  three  individuals.  The  females 
are  generally  accompanied  by  their  young.  Among  the  gibbons, 
social  life  is  various.  On  the  authority  of  Devancel  "  these 
siamangs  frequently  gather  in  large  troops  conducted  by  a  leader 
whom  the  Malays  believe  invulnerable;  no  doubt  because  he  is 
stronger  and  more  agile  than  the  others,  and  that  he  does  not 
permit  himself  to  be  captured.  In  case  of  danger,  however  exten- 
sive the  band,  each  member  looks  only  to  his  own,  safety."  The 
hulock,  according  to  Owen,  is  found  in  bands  of  a  hundred  to  a 
hundred  fifty  individuals.  The  wauwau,  according  to  Hartmann, 
appears  to  live  more  often  in  couples  than  in  bands. 

Concerning  all  this  we  may  join  in  the  conclusions  of  Espinas 
although  our  own  may  be  somewhat  different.     Says  this  author : 

"  Monkeys  live  either  in  limited  families  or  in  large  bands.  The 
reason  of  this  difference  cannot  be  explained  without  a  profound 
study  of  the  habits  of  each  species  and  of  the  foundation  species  if 
the  theory  of  Darwin  is  admitted.  Perhaps  in  other  times  and  in 
more  favorable  circumstances,  some  species  were  social ;  for  example, 
gorillas,  which  inhabit  the  forest  continually  traversed  by  numerous 
black  tribes,  live  in  seclusion  or  in  small  families.  The  chimpanzee 
appears  to  form  groups  more  or  less  extensive  according  to  the  degree 
of  security  enjoyed.  One  species,  the  indigenous  sako,  forms  groups 
of  several  couples  (or  monogamous  families)  and  inhabits  the  most 
retired  part  of  the  forest,  five  or  six  huts  of  foliage  being  found  on 
the  same  tree." 

It  may  be  affirmed,  we  think,  in  what  concerns  these  creatures, 
and  more  especially  superior  vertebrates,  which  most  closely  ap- 
1  Brehm,  op.  cit.,  t.  1°,  p.  "32 ;  Hartmann,  op.  cit.,  p.  185. 


Chap.   IX.J         ANIMAL  AND   PRIMITIVE   HUMAN   SOCIETIES  281 

proach  primitive  man,  that  the  social  life  of  relation  is  not  abso- 
lutely opposed  to  the  existence  of  the  monogamous  family.  The 
facts  stated,  and  many  others,  permit  the  following  conclusions : 

1.  Monogamy  and  polygamy  may  be  found  in  the  same  species ; 

2.  Absolute  superiority  cannot  be  claimed  for  either  of  these 
two  t>T)es  of  family  among  animals ; 

3.  Extended  forms  of  society  do  not  necessarily  depend  on  the 
form  of  domestic  life  of  the  constituent  members. 

§  15.  Function  of  the  Male  in  Social  Life.  The  development 
relative  to  which  the  preceding  problems  have  been  treated,  per- 
mits in  part  a  reduction  of  the  statement  necessary  to  the  principal 
object  of  this  study. 

The  higher  we  mount  in  the  animal  scale,  the  more  do  w^e  dis- 
cover that  the  forces  of  animal  life  create  syntheses  more  and  more 
complex  and  integrated,  and  cause,  also,  as  a  very  important 
variety  of  internal  elements,  a  superior  cohesion  among  the  mem- 
bers, without  ascribing  to  these  forces  a  process  of  simple  quantita- 
tive development.  This  observation  obliges  us  to  inquire,  in 
investigating  the  formation  of  society,  how  we  are  to  understand 
the  evolution  of  divers  social  organisms  which  are  externally 
differentiated  by  a  greater  or  less  extension  of  their  sphere. 

We  have  described  the  differences  presented  by  various  species 
of  social  animals,  differences  which  arise  from  the  extent  of  the 
development  among  them  of  the  social  phenomenon.  In  its  origin, 
society  is  indeterminate  and  confused.  When  it  takes  on  a  fixed 
character,  the  social  forms  which  are  created  conformably  to  a 
greater  number  of  needs,  only  represent  the  line  of  social  activity. 
We  thus  find  in  the  various  species,  social  types  unique  in  their 
beginnings.  There  are  creatures  which  unite  solely  for  coopera- 
tion, and  defense  of  their  own  individuality.  Some  cooperate 
only  as  members  of  domestic  societies.  Others  attain  distinct 
social  types,  but  in  succession ;  certain  organisms  accumulate 
a  variety  of  wants  which  their  psycho-physiological  nature  does 
not  permit  them  to  realize  simultaneously. 

Finally  there  are  those  which  attain  simultaneously  different 
social  types.  It  is  therefore  necessary  to  resolve  the  question  how 
each  social  type  becomes  more  complex  and  its  sphere  more  ex- 
tensive. 

But  for  this  purpose,  it  is  necessary  at  once  to  be  on  guard  against 
the  false  interpretations  which  arise  from  the  existing  character 
of  human  societies,  and  which  imply  that  the  couple,  the  monog- 
amous family,  the  unit  of  social  life,  may  have  produced  by  sue- 


282  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

cessive  spontaneous  creations  all  social  groups,  the  association  of 
families,  the  tribe  or  gens,  the  clan,  and,  lastly,  territorial  com- 
munities such  as  municipalities,  republics,  empires,  etc.  Such  a 
supposed  process  in  the  evolution  of  human  races  is  inadmissible ; 
its  application  to  animal  societies  is  more  so.  In  view  of  the 
given  facts,  it  is  impossible  to  admit  a  regular  order  of  social  forms, 
where  each  type  may  reach  a  superior  level  by  a  process  of  in- 
creasing extension. 

It  is  necessary,  for  this  reason,  to  avoid  regarding  the  different 
kinds  of  societies  as  the  resultants  of  a  progressive  formation  dis- 
posed in  echelon  array,  but  rather  to  consider  each  of  them  as  the 
direct,  effect  of  a  necessity  of  life.  Nevertheless,  this  does  not 
require  disregard  of  a  certain  influence  by  an  inferior  social  type 
upon  the  superior  type.  In  fact,  the  combination  of  this  in- 
fluence, which  may  become  hereditary,  with  that  of  fundamental 
necessity,  produces  the  highest  degree,  not  only  of  quantitative, 
but,  also,  of  qualitative  complication  in  each  superior  social  form. 

If  we  apply  this  theory  to  our  point  of  inquiry,  we  may  conclude 
that  a  life  of  social  relation  in  the  horde,  in  the  tribe,  and  in  all 
the  types  which  are  called,  perhaps  inexactly,  ethnic,  is  not  the 
result  of  the  appearance  of  the  family.  On  the  contrary,  groups 
have  a  reason  for  existence  arising  out  of  a  variety  of  circum- 
stances. Sometimes  they  grow  out  of  the  necessity  of  common 
defense,  sometimes  they  are  the  product  of  common  action,  and 
sometimes  they  are  generated  by  the  psychic  pleasure  of  seeing 
one's  fellow-creatures.  This  fact,  as  Espinas  notes,  does  not  im- 
peach the  further  fact  that  if  young  animals  were  not  trained  for 
social  life  after  their  birth,  they  would  never  form  either  a  horde 
or  a  troop,  no  matter  in  what  level  of  the  zoological  scale  they 
are  found.  Social  life  being  an  expansive  manifestation  of  forces 
which  tend  to  cooperation  and  which  likewise  occasion  exchange 
of  services,  it  creates  different  kinds  of  relations  which  present 
differences  of  character  according  to  the  case.  Moreover,  this 
same  common  origin  of  all  social  forms  explains  how  there  is 
created  among  animals  a  series  of  reciprocal  influences  which 
frequently  prevents  the  possibility  of  distinguishing  with  pre- 
cision each  social  form. 

If  we  recall  the  facts  already  noted  we  are  forced  to  acknowledge 
that  if  the  form  based  on  family  ties,  and  the  social  form  are  often 
found  separated,  yet  they  are  not  exclusive  of  each  other.  On  the 
contrary,  if  we  regard  nature  as  an  organism,  we  see  the  harmoniz- 
ing trend  triumphing  among  superior  animals,  which  has  created 


CH.4.P.    IX.]         ANIMAL   AXD   PRIMITIVE   HUMAN   SOCIETIES  283 

the  still  rudimentary  syntheses  of  certain  anthropoids,  and  those 
far  more  complex  and  more  conscious  ones  of  man  who  by  virtue 
of  his  more  complex  psycho-physiological  character  realizes  social 
life,  accumulating  with  more  or  less  discernment  the  domestic, 
and  the  ethnic  and  territorial,  forms  of  social  organization. 

§  16.  Animal  Societies  analogous  to  Primitive  Human  Societies. 
Observation  of  the  special  relations  which  exist  in  the  animal 
world  between  the  psycho-physical  character  of  each  individual 
and  the  more  or  less  complex  social  forms,  is  a  matter  of  great 
interest;  because  in  taking  account  of  human  social  life  in  its 
historical  manifestations,  we  may  infer,  or  at  least  conjecture, 
what  has  been  the  social  life  of  primitive  man.  Nevertheless,  a 
determination  of  the  nature  of  the  intervention  of  the  male  in 
family  and  social  life  is  not  less  interesting,  especially  among  the 
mammals  which  occupy  the  highest  point  of  elevation  in  the 
zoological  scale.  Some  investigations  of  this  kind  have  already 
been  made  in  observation  of  family  types,  but  which  have  been 
studied  for  an  entirely  different  purpose.  The  facts  of  family 
life  protest  against  the  statement  of  Zanetti,  according  to  whom 
the  role  of  the  male  is  opposed  to  the  creation  of  the  family.  This 
is  so  certain  and  evident,  that  it  is  not  surprising  to  find  H.  S. 
Maine  ^  taking  shelter  in  zoological  sociology  for  defense  of  the 
hypothesis  of  primitive  patriarchy,  combated  by  McLennan 
and  by  Morgan.  Without  for  the  moment  declaring  adhesion 
or  opposition  to  the  patriarchal  theory,  we  believe  that  upon  this 
point  a  number  of  distinctions  must  be  made,^  and  that  in  attempt- 
ing to  conjecture  the  social  character  of  primitive  man  (assuming 
progress  and  not  retrogression),  we  should  not  lose  sight  of  the 
antecedent  facts  to  which  we  now  refer. 

The  observation  of  Maine,  inspired  by  Darw^in,  is  of  great  weight. 
This  celebrated  historian  of  ancient  law  says :  "  when  man  had 
most  of  the  animal  in  him  he  belonged  to  the  highest  animals." 
Is  it  audacious  to  think  that  man  bordering  on  the  nature  of  the 
animal  has  similarities  in  fundamental  characteristics?  This  is 
not  the  place  to  insist  on  this  point  of  view  which  is  only  of  sec- 
ondary importance.  We  have  only  to  determine  the  role  of  the  male 
in  social  life.  A  distinguished  sociologist,  M.  G.  Le  Bon,  expresses 
the  following  opinion  which  appears  to  be  the  most  logical  one 

1  "Dissertations  on  Early  Law  and  Custom",  pp.  274,  89. 

2  See  Star  eke,  "The  Primitive  Family";  also  my  work  entitled 
"Theories  modernes  sur  les  origines  de  la  famille,  de  la  societe,  et  de 
I'etat"  (" Biblioth^que  Sociologique  Internationale":  French  transla- 
tion). 


284  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

which  may  be  drawn  from  the  facts :  "  In  animal  societies  which 
most  nearly  approach  our  own  species,  we  see  animals,  whether 
monogamous  or  polygamous,  very  jealous  of  their  sexual  preroga- 
tives, and  defending  them  energetically  during  the  period  of 
union,  that  is  to  say,  at  least  during  the  period  necessary  for  the 
education  of  the  progeny."  ^ 

Thus,  if  we  seek  to  find  the  nature  of  the  family  among  animals 
in  which  domestic  union  is  maintained  during  the  time  of  education 
of  the  offspring,  we  see  the  male  and  the  female  (or  females)  con- 
stituting a  vigorous  and  coherent  whole  of  which  the  male  is  the 
dynamic  center.  It  cannot  be  denied  that  the  mother,  strictly 
speaking,  creates  the  most  universal  internal  bond  of  the  family ; 
but,  on  the  other  hand,  it  cannot  be  disregarded  that  a  complete 
animal  family,  whether  monogamous  or  polygamous,  maintains  its 
unity  and  cohesion  by  reason  of  the  part  taken  by  the  male.  More- 
over, if  we  study  the  evolution  of  the  family  in  the  animal  domain, 
we  shall  be  forced  to  the  conclusion,  that  the  dominant  tendency 
which  finally  triumphs  is  that  which  introduces  the  hegemony  of 
the  male. 

On  these  grounds,  while  we  recognize  the  distinct  origins  of 
family  and  society,  nevertheless  it  is  impossible  to  regard  (1)  the 
male  as  an  obstruction  to  the  creation  of  the  family,  and  (2)  the 
male  as  more  adapted  to  social  life.  In  the  first  place,  among  the 
species  where  the  male  cooperates  in  domestic  life  (principally 
among  mammals),  it  is  he  who,  in  the  last  analysis,  characterizes 
the  family;  his  jealousy  isolates  it;  his  force  nourishes  it;  and 
his  vigilance  protects  it.  The  male,  therefore,  is  the  principal 
element  of  its  cohesion,  and  in  a  degree  the  force  which  gives  it 
its  individuality  as  against  other  similar  unions. 

There  appears  to  be  a  certain  confusion  in  the  manner  of  inter- 
preting and  of  explaining  certain  zoological  facts.  Thus,  for 
example,  on  account  of  the  way  in  which  the  sentiment  which 
leads  to  the  family  and  society  is  manifested,  certain  sociologists 
(e.g.  Sales  y  Ferre  following  in  this  regard  Zanetti,  Letourneau, 
and  Espinas)  affirm  that,  "  instead  of  society  being  derived  from 
the  family,  there  lies  between  them  a  certain  antagonism."  The 
Spanish  sociologist  ^  also  adds  that  if  we  disregard  the  sentiment 
of  sympathy  (which,  according  to  him,  originates  with  society) 


'  "L'homme  et  les  societes",  t.  II,  p.  289. 

2  Sales  y  Ferre  says  that  "  society  is  the  inheritance  of  man,  the  family 
that  of  woman."  This  is  confirmed  in  the  present  day  if  we  mean  by 
society  the  State ;  but  can  this  be  said  of  primitive  man  ? 


Chap.   IX.]         ANIMAL  AND   PRIMITIVE   HUMAN  SOCIETIES  285 

and  "  if  we  proceed  from  the  family  based  on  an  empire  of  sexual 
jealousy,  we  shall  never  arrive  at  a  society.  The  male  will  not 
fail  to  unbridle  his  wrath  on  those  who  come  near  and  are  able 
to  make  an  attempt  on  the  privileges  which  he  has  arrogated  to 
himself.  Since  he  has  the  power  to  compel  it,  the  female  remains 
attached  to  him.^  "  This  is  not  other  than  express  recognition  of 
the  importance  of  the  male  in  the  family.  How,  in  the  face  of 
this,  can  it  be  said  that  the  male  is  an  obstruction  to  its  creation  ? 
If  it  is  thought  that  the  jealousy  of  the  male  w^ill  play  the  role  in 
society  of  a  dissolvent,  to  use  the  language  of  Sales  y  Ferre,  by 
reviving  struggle  among  the  males  and  by  creating  couples  which 
tend  to  become  separated  from  the  rest,  is  it  permissible  to  state 
that  the  male  is  more  adapted  for  the  family  than  for  society  ? 

§  17.  Chief tainry  in  Animal  Societies.  If  we  apply  ourselves 
to  the  facts,  some  of  which  we  have  set  out,  there  is  clearly  seen 
the  preponderance  of  the  male  in  the  family,  principally  in  the 
situation  which  presents  the  strongest  analogy  to  primitive  man. 
Without  reproducing  all  the  available  data  concerning  the  nature 
of  the  family  among  anthropoid  apes,  we  ought  to  emphasize  the 
importance  there  of  the  male,  as  well  as  the  possibility  of  society 
being  constituted  of  families  as  among  chimpanzees  and  other 
animals.  The  description  of  Brehm  is  evidence  of  the  signifi- 
cance of  the  male  in  all  social  life.  It  may  be  remarked,  as  in 
fact  Espinas  has  done,  that  in  the  same  way  that  "  we  discover 
families  of  monkeys  obeying  a  chief,  in  like  manner  we  see  the 
troop  or  the  horde  becoming  organized.  Each  mother  watches 
over  her  young,  and  the  leader  watches  over  all." 

The  description  of  Brehm  follows : 

"  The  social  life  of  monkeys  is  very  curious.  A  few  of  the  species 
live  in  isolation ;  but  most  of  them  gather  in  large  groups  and  each 
one  chooses  a  more  or  less  extended  fixed  abode.  When  the  troop  has 
selected  the  place  where  it  is  to  remain,  the  real  life  of  the  monkey  com- 
mences, with  its  pleasures,  distractions,  disputes,  needs,  and  miseries. 
The  strongest  male  of  the  tribe  establishes  himself  as  the  chieftain  and 
guide.  He  does  not  acquire  this  dignity  by  the  choice  of  the  others, 
but  only  by  force  of  struggles  and  combats  with  other  old  males,  his 
rivals.  The  longest  teeth  and  the  strongest  arms  decide  the  victory 
among  monkeys  as  among  men.  Whoever  does  not  submit  willingly  is 
compelled  to  yield  by  force  ;  so  that  the  power  which  appertains  to  the 
strongest  and  wisest  individual  is  that  which  has  the  longest  canines. 
The  chief  exacts  absolute  obedience,  and  always  gets  it.      He  shows 

1  ••Tratado  de  Sociologia",  p.  233. 


286  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

little  chivalry  in  what  we  may  call  the  foible  of  sex.  The  '  jus  primse 
noctis  ^  is  his.  He  becomes  the  patriarch  of  all  the  people  and  his 
family  increases  as  the  sands  of  the  ocean.  A  jealous  and  brutal 
Sultan,  he  arrogates  to  himself  exclusive  power  over  all  females.  He 
reriloves  those  which  are  not  amiable  enough,  and  is  regarded  as  the 
father  of  the  tribe.  When  the  colony  becomes  too  large,  a  part  be- 
comes detached  under  the  leadership  of  another  male  who  thinks 
himself  strong  enough  to  resist  the  chieftain.  Then  begins  a  new 
quarrel  for  the  command  of  the  new  troop.  The  chief  or  leader 
suitably  performs  his  function.  The  esteem  which  he  acquires  ex- 
cites his  self-conceit,  and  gives  him  a  certain  superiority  which  denies 
to  subordinates  the  things  favorable  to  him.  On  the  other  hand,  the 
old  chief  for  the  safety  of  all,  and  he  is  the  most  circumspect  of  the 
band,  turns  his  attention  without  stop  in  all  directions ;  his  mistrust 
extends  to  all ;  and  he  nearly  always  discovers  in  time  the  danger 
which  threatens  his  tribe." 

We  may  quote  also  Espinas : 

"  It  is  known  that  in  a  wild  state  new  troops  of  horses  are  formed 
by  the  necessity  under  which  young  horses  create  the  family  outside 
of  existing  groups  where  the  old  males  will  not  suffer  them  to  abide." 

Many  other  illustrations  could  be  given ;  but  what  has  been  set 
out  is  sufficient  to  show  that  in  the  family,  the  horde,  the  troop, 
or  tribe  of  animals  inferior,  although  analogous,  to  man,  the  role 
of  the  male  is  very  important.  Moreover,  in  certain  species  the 
two  forms  of  social  grouping,  the  family  and  society,  appear  to  be 
perfectly  compatible,  without  implying  either  diminution  of  the 
power  of  the  male  or  the  disappearance  of  jealousy.  On  the  other 
hand,  given  the  habits  and  the  force  with  which  the  male  defends 
his  position,  promiscuity  is  not  possible,  and  it  is  not  easy  to 
explain  the  family  as  based  on  the  female. 

§  18.  Conclusion.  Having  shown  that  among  animals  the 
predominance  of  the  male  coincides  with  superior  psychic  develop- 
ment and  with  a  physiological  development  greatly  resembling 
that  of  man,  is  it  possible  to  believe  that  when  we  reach  the 
stage  of  primitive  man,  the  ideal  evolution  breaks  with  the  prin- 
ciples which  have  guided  it ;  that  the  coincidence  stops ;  that  jeal- 
ousy disappears ;  that  the  male  loses  his  power ;  and  that  the  female 
becomes  the  sole  bond  which  holds  the  family  together,  the  male 
not  having  any  influence  on  the  primitive  development  of  do- 
mestic life?  Is  it  not  more  logical  to  think  that  the  passions 
which  in  civilized  man  are  restrained  and  controlled  are  without 
check  in  primitive  man,  especially  when  we  see  them  manifested 


Chap.    IX.]       ANIMAL   AND   PRIMITIVE   HUMAN   SOCIETIES  2S7 

with  brutal  intensity  in  those  beings  which  from  other  points  of 
view  resemble  us  ? 

This  question  cannot  be  resolved  without  a  thorough  study  of 
primitive  man,^  But  this  preparatory  sociological  study  was  neces- 
sary as  basis  of  that  series  of  investigations ;  and  it  is  now  possible 
to  maintain  the  following  propositions  as  conclusions  of  the  present 
study  and  as  points  of  departure  for  further  investigation : 

1 .  If  we  consider  social  phenomena  at  once  in  their  entirety  and 
in  their  development,  it  becomes  very  clear  that  there  is  a  tend- 
ency in  the  constitutive  elements  of  different  societies  to  evolve 
toward  a  constantly  increasing  complexity. 

2.  This  tendency  is  manifested  by  progressively  widening  syn- 
theses whose  formations  imply  simultaneous  accumulation  of 
social  constructions  derived  from  more  rudimentary  phases  of 
growth.  These  forms  appear  to  be  contradictory,  and  they  are 
produced  in  succession.  This  tendency  may  be  denominated  that 
of  progressive  social  syntheses. 

If  we  strike  out  from  this  hypothesis,  of  which  we  have  found  the 
basis  in  the  animal  world,  for  the  purpose  of  drawing  conclusions  rel- 
ative to  man,  we  may  assert  that  since  he  is  a  being  superior  to 
other  animals  from  the  psychic  point  of  view,  he  must  have  tended  to 
create  social  life  by  a  complex  means  of  increasing  synthesis.  If,  as 
we  have  stated,  the  different  forms  of  society  were  established  in  obe- 
dience to  natural  wants,  it  is  logical  to  suppose  that  primitive  socie- 
ties were  organized  in  such  manner  as  to  satisfy  these  necessities  in 
the  measure  that  the  circumstances  demanded  or  made  possible. 

This  applies  to  human  society  in  general.  If  we  fix  our  attention 
on  the  form  of  society  which  may  be  considered  as  primordial,  that 
is  to  say,  on  the  familj^,  we  will  find  in  it  a  fact  characteristic  of 
animals  most  closely  related  to  man — the  increasing  predominance 
of  the  male  as  the  leader,  which  is  an  element  of  domestic  life  and 
of  life  in  the  tribe.  This  predisposes  to  the  recognition  of  the  im- 
portance of  the  male  in  the  formation  and  the  development  of 
primitive  societies. 

In  a  word,  to  render  more  concrete  the  results  of  this  investiga- 
tion, the  sociologist  may,  by  way  of  preliminary  induction,  draw 
from  animal  sociology  two  main  conclusions,  useful  for  study  of 
human  society :  (1)  the  possible,  perhaps  even  necessary,  con- 
currence of  different  social  forms  among  primitive  men;  (2)  the 
primary  importance  of  the  male  in  primitive  societies. 

^  See  my  essay,  "Theories  modernes  sur  les  origines  de  la  famille,  de  la 
soci^te,  et  de  I'^tat"  ("Bib.  Sociologique  Internationale"). 


Chapter  X 


NATURAL  ORIGIN  OF  PROPERTY  AMONG   BIRDS, 
BEASTS,   AND   FISHES  ^ 


I.  General    Characteristics  of    the 
Phenomenon  of  Property. 

Property  is  a  Natural  Fact. 
Property   as    an     Instinctive 

Fact  Common  to  Mankind. 
Original     Character     of     the 

Phenomenon. 
The    Earliest   Manifestations 

of  Life. 

II.  Phenomena  of  Property  among 
Plants. 

Importance    and    Nature    of 

Plant  Organization. 
Plants  Attain  Expression  of 
Property. 
§  7.    Biological  Origin  of  Property. 
§  8.   Vegetal  Defense  of  Territory. 
§  9.    Forms  of  Plant  Life. 

III.  Forms     of     Property     among 

Fish. 
§  10.   The  Temporary  Shelter  and 
the  Abode. 


§1. 
§2. 

§3. 

§4. 


§5. 

§6. 


11. 


Nest-Building   as   a   Fact   of 
Property. 

Social    Organization     of    the 
Stickleback. 

Other  Forms  of  Property. 
The   Earliest   Forms  of  Prop- 
erty Among  Men. 

Primitive  Man. 

Tools  and  Weapons. 

Tools    and   Weapons   as    In- 
dividual Property. 

Clothing. 

Food  Reserves. 

Hunting  Land. 

Primitive  Pastoral  Tribes. 

Comparison    of    the    Condi- 
tions    which     Reflect     the 
Phenomena  of  Property  in 
Man  and  Animals. 
V.    Conclusions. 

§  22.    Essential    Principles    of    the 
Phenomena  of  Property. 


§12. 

§13. 
IV. 

§14. 
§15. 
§16. 

§17. 

§18. 
§19. 
§20. 
§21. 


I.    General  Characteristics  of  the  Phenomenon  of  Property 

§  1.  Property  is  a  Natural  Fact.  Property  is  a  fact  of  nature 
antecedent  to  all  legal  organization.  It  receives  from  it  the  sanction 
by  which  the  facts  as  they  exist  are  recognized  and  formulated. 
Among  the  various  theories  advanced  in  political  economy,  con- 
cerning the  right  of  property,  the  weakest,  by  general  consent, 
is  certainly  that  which  ascribes  its  creation  to  the  law.  Property 
is  the  result  of  a  tendency  all  the  more  instinctive  as  it  has  its 
origin  in  the  very  nature  of  man,  in  the  forms  of  his  activity,  and 
in  his  sense  of  sociality.  The  close  connection  which  it  bears  to 
these  qualities  which  do  not  appertain  to  man  alone,  indicates 
that  we  ought  to  search  for  its  beginning  in  the  animal  world. 

1  [By  R.  Petrucci.  Translated  from  "Les  Origines  naturelles  de  la 
Propriete :  essai  de  sociologie  comparee"  ("Travaux  de  I'lnstitut  de 
Sociologie"  [Solvay  Institution],  I,  Notes  et  Memoires,  Fasc.  3,  Brussels, 
1905),  pp.  1-3,  5,  7,  9-11,  14-16,  22,  23,  25,  28,  81-90,  180-191,  209-218, 
223-228.     The  work  contains  many  valuable  pictorial  illustrations. 

This  translation  is  by  Albert  Kocourek.] 

288 


Chap.  X.l  NATURAL  ORIGIN  OF  PROPERTY  289 


§  2.  Property  as  an  Instinctive  Fact  Common  to  Mankind. 
It  is  necessary  at  first  to  limit,  at  least  provisionally,  the  phenom- 
enon of  property  to  human  society.  It  is  there  that  it  is  pre- 
sented in  an  incontestable  form.  It  is  there  that  we  are  able  to 
establish  principles  with  the  hope  of  their  general  acceptance. 
If  we  examine  the  origin  of  property  from  this  point  of  view,  it 
will  not  be  possible  thenceforth  to  refuse  it  the  character  of  an 
instinctive  fact,  common  to  all  mankind.  In  its  beginnings,  also, 
we  shall  find  that  it  is  established  in  two  distinct  types,  which 
today  again  do  service  in  furnishing  the  base  of  political  and 
social  schools  of  thought.  It  is  worth  noting  that  these  two 
types,  the  individual  and  the  collective,  are  the  result  of  the 
physical  and  mental  structure  of  man.   .   .   . 

With  an  extension  of  his  muscular  activity  by  invention  and 
art,  of  implements  and  arms  which  permit  him  to  increase  the 
utilization  of  his  powers  and  faculties,  man  creates  objects  which 
are  external  to  him,  but  which  are  closely  connected  to  him,  be- 
cause they  provide  a  means  of  attack,  of  defense,  and  of  protec- 
tion. 

Constructed  according  to  the  individual  type,  when  he  creates 
an  implement,  he  establishes  over  it  possession  impressed  with 
an  individualistic  character  in  which  is  reflected  his  own  nature. 
This  is  what  may  be  called  the  embryo  of  private  property.  On 
the  other  hand,  possessing  an  instinct  which  drives  him  into  the 
life  of  a  group,  to  the  end  of  defending  his  species,  and  of  main- 
taining it  against  the  hostility  of  the  external  world,  he  organizes 
according  to  a  social  type  which  has  its  immediate  reflection  in 
the  possession  of  territories  of  the  chase,  of  regions  explored  by 
the  tribe  or  the  clan,  and  which  the  tribe  and  the  clan  defend 
with  ferocity  against  appropriation  by  any  group  of  strangers. 
This  is  the  origin  of  collective  property,  the  direct  result  of  the 
instinct  of  sociality,  and,  in  consequence,  of  the  mental  nature 
of  man  linked  by  a  narrow  bond  to  the  necessities  of  adaptation 
to  surrounding  conditions. 


If  property  is  a  fact  which  responds  to  the  necessities  of  adapta- 
tion, and  is  not  a  creation  of  the  law ;  if  it  is  a  natural  fact,  and 
instinctive,  preceding  all  regulation,  and  all  reflection  (as  put  by 
Leroy-Beaulieu),  or  preferably  (in  the  language  of  psychology), 
the  fact  of  consciousness,  we   must   conclude   that   neither   the 


290  FACTORS   OF    LEGAL   EVOLUTION  [Pakt   II. 

individual  type  nor'  the  instinct  of  sociality  is  limited  to  the  human 
species.  Consequently  we  must  search  for  the  true  origin  of 
property  even  in  the  depths  of  the  animal  world.  We  will  there 
be  able  to  determine  the  conditions  which  will  remove  the  ob- 
scurities in  the  essential  character  of  this  phenomenon.  .  .  . 
Finally,  we  may  investigate  if  this  phenomenon  is  realized  even 
in  a  more  primary  degree  in  the  vegetal  reign,  and  even  in  the 
inorganic  world. 

§  3.  Original  Character  of  the  Phenomenon  of  Property.  For 
precision  of  idea,  it  is  necessary  at  the  outset  to  fix  the  limits  of 
the  application  of  the  concept  property,  and  to  find  what  it  means. 
Property  is  not  the  same  thing  as  occupation.  That  term  is  too 
vague;  and  one  might  say,  for  example,  of  any  thing,  that  it  is 
proprietor  of  the  space  which  it  occupies.  It  is  necessary  also 
that  there  be  possession;  that  is  to  say,  that  the  being  or  the 
group,  organic  or  inorganic,  make  application  of  forces  to  the  end 
of  reserving  to  itself  the  exclusive  control  of  that  which  it  occu- 
pies and  which  it  exploits  to  its  own  profit  either  in  a  temporary 
or  permanent  fashion.^ 

§  4.  The  Earliest  Manifestations  of  Life.  The  most  primitive 
form  of  property  certainly  is  that  of  the  prey  of  animals,  which 
arises  from  the  most  pervasive  and  indispensable  of  needs  —  that 
of  nutrition.  This  need  is  encountered  beginning  with  mono- 
cellular life,  but  there  is  also  found  at  this  stage  of  biological 
activity  a  secondary  form  of  property  in  the  refuge  which  the 
•animal  itself  makes,  and  in  the  envelope  which  becomes  a  non- 
living annex  to  the  living  individual,  and  which  is  produced  by  a 
transformation  of  materials  taken  by  it  from  its  surroundings. 
The  foraminifera,  for  example,  may  serve  as  a  type  of  this  early 
manifestation  of  property  in  a  shelter ;  although  the  cystic  forms, 
for  the  greater  part  momentary,  and  confined  to  the  activity  of 
reproduction,  often  conceal  the  character  of  the  shelter  which 
serves  for  protection  of  a  large  number  of  individuals,  and  fur- 
nishes the  primitive  form  of  property  of  the  family  or  collective 
type.  This  collective  form  of  property  exists  in  fact  in,  and  is 
copied  from,  the  permanent  or  transitory  colonial  organization 
of  monocellular  animals. 

It  is  seen,  therefore,  in  the  most  elementary  manifestations  of 
life,  that  property  regarded  as  an  instinctive  fact  is  already  fash- 
ioned in  two  types,  individual  and  collective,  which  are  inter- 

1  [At  this  point,  the  author  considers  the  phenomena  of  property  and  I 
possession  in  physical  and  chemical  substances,  and  especially  crystals.] 


Chap.  X.]         NATURAL  ORIGIN  OF  PROPERTY  291 

mingled  in  the  general  evolution  of  the  organic  world,  and  that 
they  there  express  the  law  of  protection  of  the  individual  as  well 
as  of  the  species. 

II.    Phenomena  of  Property  among  Plants 

§  5.  Importance  and  Nature  of  Plant  Organization.  It  may 
appear  strange  that  we  apply  ourselves  to  a  study  of  the  phenomena 
of  property  among  plants.  On  first  impression,  the  individual 
plant  exhibits  so  much  of  passiveness,  that  we  should  avoid  any 
such  effort.  Nevertheless,  if  the  fact  of  property  begins  as  soon 
as  the  first  activities  of  living  matter  arise,  and  as  a  manifestation 
of  these  activities,  it  will  be  singular  if  it  should  be  absent  in  a 
plan  of  organization  as  vast  and  as  complex  as  the  vegetal 
world.  The  adaptations  there  are  as  diverse,  numerous,  and 
flexible,  if  not  more  so,  than  those  of  the  animal  kingdom.  .  .  . 

It  is  necessary,  at  the  very  first,  to  inquire  into  the  nature  of 
the  vegetal  individual.  If  its  character  is  colonial,  it  will  realize 
the  proprietary  expression  demanded  by  this  structure.  If,  on 
the  contrary,  it  indicates  a  personal  individuality,  it  will  attain 
an  individual  or  collective  form  of  property,  according  to  the 
phenomena  of  association  which  predominate  in  the  life  of  the 
isolated  plant. 

From  this  point  of  view,  the  inhibitory  phenomena  and  the 
phenomena  of  communication  among  plants  show  a  nervous 
activity  exercised  by  means  of  connections  established  between 
the  cells  and  arising  from  the  nature  of  a  nervous  system  based 
on  the  consecutive  differentiation  brought  about  in  a  division  of 
labor.  It  is  never  an  organ  of  sense,  among  plants,  which  reacts, 
but  another  part  of  the  plant  from  which  excitations  are  trans- 
mitted. The  examples  are  characteristic  and  numerous.^  They 
show  clearly  that  the  plant  is  a  complete  whole,  and  that  its  parts 
have  a  reciprocal  dependence.  .  .  .  Plants  show  the  peculiarity  of 
an  individual  nature  closely  approaching  a  colonial  organization. 
Nevertheless,  from  the  position  taken  here,  the  parts  of  a  plant 
are  sufficiently  consolidated  by  the  total  of  actions  and  reactions, 
that  we  may  regard  it  as  an  entire  individual.  .  .  . 

§  6.  Plants  Attain  Expression  of  Property.  It  is  our  task  now 
to  determine  exactly  the  conditions  under  which  plants  realize 
the  fact  of  property,  and  to  see  if  we  are  justified  in  ascribing  to 
them  in  this  particular  field  certain  of  these  activities. 

1  [Examples  follow.] 


292  FACTOKS   OF   LEGAL   EVOLUTION  [Part   II. 

Nutrition  is  an  essential  element  in  the  life  of  all  organized 
beings.  It  is  that  which  most  of  the  time  governs  the  adaptations 
of  the  individual  and  the  phenomena  of  property  which  are  the 
result  of  these  adaptations.  In  the  beginning,  plants  obtain  their 
nourishment  by  regular  exploitation  of  the  soil;  afterwards,  by 
branches  which  carry  certain  organs  which  draw  the  materials  of 
nutrition  from  the  surrounding  atmosphere. 

Plants  do  not  occupy  the  soil ;  they  possess  it.  When  a  seed  is 
once  established  and  begins  its  development,  or  a  plant  is  wholly 
matured,  it  possesses  a  definite  space  which  is  occupied  by  its  roots. 
Neither  the  plant  nor  the  grain  is  limited  by  this  occupation  of 
the  soil.  They  defend  it  from  the  first  with  life  itself,  and  later 
also  by  active  resistance.  Moreover,  they  constantly  exploit 
the  soil  which,  by  reason  of  this  and  in  consequence  of  their  labor, 
receives  a  permanant  productivity.  The  occupation,  the  ex- 
ploitation of  nutritive  ground,  presents  the  essential  character  of 
a  fact  of  property. 


The  greatest  differences  are  found  in  the  conditions  under  which 
plants  occupy  and  defend  the  territory  upon  which  they  realize  the 
fact  of  property.  Certain  species  live  as  individuals,  more  or  less 
isolated  among  other  species.  These  are  the  solitary  plants. 
Others  are  social,  occupying  an  extended  space,  and  drive  out  all 
other  plants  from  the  territory  which  they  exploit. 

§  7.  Biological  Origin  of  Property.  Property  goes  back  to  a 
far  beginning  and  has  its  source  in  the  organization  of  the  in- 
dividual plant.  We  may  follow  in  substance  the  transition, 
almost  imperceptible,  from  that  which  is  peculiar  to  the  individual, 
and  integral  in  its  structure,  to  the  point  where  it  becomes  external 
and  becomes  realized  in  a  concrete  phenomenon.  These  pecu- 
liarities are  of  the  greatest  interest,  because,  while,  at  first,  special 
to  the  individual,  they  later  become  general  traits ;  and,  further- 
more, because  animal  life  shows  the  same  conditions,  in  this,  that 
the  facts  of  property  realized  among  animals  are  as  among  plants, 
a  sort  of  reflection  in  the  external  world,  of  a  particular  and  of  an 
internal  organization,  which  in  the  end  are  materialized  in  phe- 
nomena distinct  from  the  individual.  This  origin  which  bases  a 
fact  considered  as  social  upon  a  biological  datum,  and  which  is 
of  considerable  importance,  is  emphasized  in  connection  with 
plant  life  where  the  simplicity  of  the  activities  presented  permits 
their  detachment  for  purpose  of  study. 


Chap.  X.]  NATURAL  ORIGIN  OF  PROPERTY  293 

Plants  establish  a  reserve  of  nutrition.  The  sap  does  not  suf- 
fice to  nourish  a  plant  at  the  time  of  germination,  of  flowering,  or 
of  fructification.  At  these  periods  there  is  necessity  for  consump- 
tion of  much  aliment,  in  preparation  for  which  the  plant  makes 
ready  a  reserve. 

On  first  view,  this  phenomenon  is  quite  different  as  between 
plants  and  animals.  Nevertheless,  a  closer  inspection  of  the 
essential  character  of  the  principle  will  disclose  that  the  fact  of 
property  found  in  a  nutritive  reserve  presents  elements  of  simi- 
larity in  both. 

Before  the  active  periods  of  nutrition,  the  animal  accumulates 
an  excess  of  aliment  which  later,  during  the  phases  of  denutrition, 
is  utilized.  The  hump  of  the  camel  or  the  large  accumulation  of 
fat  of  the  seal,  the  fatty  tissue  stored  up  in  the  summer  and  uti- 
lized in  the  winter  by  hibernating  animals,  are  examples  too 
evident  and  too  familiar  to  require  extended  remark.  We  shall 
deal  with  the  nutritive  reserve  only  as  it  is  found  external  to  the 
individual,  and  when,  in  consequence,  it  becomes  a  fact  of  property. 
But,  if  organic  adaptation  determines  it,  it  is  clear  that  it  consti- 
tutes part  of  the  animal  itself. 

However,  certain  phenomena  show  a  transition  between  the 
nutritive  reserve  created  by  an  organism  and  the  nutritive  re- 
serve external  to  the  organism.  The  social  stomach  of  ants,  for 
example,  is  a  provisional  storehouse,  brought  about  by  adapta- 
tion, in  the  body  of  the  insect  itself.  It  is  collective  property. 
This  individual  storehouse  carries  a  nutritive  reserve  of  honey 
which  belongs  to  the  community,  and  which,  considered  from  the 
point  of  view  of  social  life,  is  a  form  of  property  external  to  the 
individuals  composing  the  group.  Finally,  among  bees  which 
construct  a  storehouse  for  honey,  and  of  cells  for  the  brood  with 
wax  secreted  by  their  wax  glands,  we  see  a  direct  phase  of  pro- 
longation of  the  organism  in  property  external  to  the  insect  and 
collective  in  form.  In  fact,  the  honey-comb,  which  is  a  form  of 
collective  property  external  to  the  individual,  is  made  by  a  secre- 
tion which  is  a  product  of  the  individual  organism.  For  the  rest, 
it  is  after  organic  development  among  the  members  of  the  colony, 
that  there  is  provided  the  nutritive  reserve  itself,  the  store  of 
honey.  Passing,  lastly,  to  the  tunnels  dug  by  certain  rodents, 
to  the  dens  made  by  certain  birds,  and  to  the  storehouses  provided 
by  certain  species  of  ants  for  accumulation  of  a  food  reserve, 
originating,  however,  like  organic  reserves,  from  exploitation  of 
an  environment,  we  reach  the  fact  of  property  realized  solely  by 


294  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

the  industry  of  the  animal,  exclusive  of  all  direct  contribution  and 
of  all  organic  elaboration. 

We  see  in  this  series  of  phenomena  an  evolutionary  chain  start- 
ing with  a  food  reserve  prepared  by  the  organism  and  stored  in 
its  body.  This  stage  leads  to  the  intermediate  forms  which  in 
general  are  found  among  the  honey  ants  with  the  phenomenon  of 
a  social  stomach,  and  among  bees  which  construct  cells  by  means 
of  an  organic  secretion.  Lastly,  we  reach  the  stage  of  animals 
which  construct  shelters  and  hiding  places  for  their  food  reserves 
which  represent  materials  external  to  the  individual  organism. 

This  demonstrates  the  singular  rhythmic  action  with  which  the 
organization,  or  rather  the  structure,  of  the  animal  is  prolonged 
into  its  industry.  The  facts  of  property  which  it  realizes  are  its 
reflection.  They  are  molded  in  a  manner  so  fitting  the  nature  of 
the  animal  that  they  express  its  various  adaptations  and  evolution. 

Plants  show  analogous  features  in  their  accumulation  of  a  food 
reserve.  These  features  are  there  found  even  more  developed, 
due  to  an  inferior  concentration  of  individuality,  and  to  the  plas- 
ticity and  greater  independence  of  the  various  parts  of  the  plant. 
There  are  from  the  beginning  differentiations  which  create  food 
reserves  in  the  midst  of  the  plant's  own  tissues ;  and  later  adapta- 
tions which  provide  outside  of  the  vegetal  structure,  the  sources 
of  nutrition  on  which  it  draws  for  maintenance  of  its  existence.^ 

§  8.  Vegetal  Defense  of  Territory.  In  the  search  of  nutritive 
ground,  plants  exhibit  a  phenomenon  similar  to  that  found  among 
animals.  Among  animals  which  live  in  solitude,  or  in  pairs,  pos- 
sessing a  certain  domain  for  the  hunt  or  for  fishery,  as  soon  as 
the  young  reach  an  age  when  they  can  maintain  themselves  and 
search  out  a  domain  of  their  own,  the  parents  drive  them  away 
to  a  considerable  distance  from  themselves.  It  is  the  same  among 
plants. 

The  plant  mother  possesses  a  definite  territory  which  she  ex- 
ploits and  upon  which  she  maintains  herself.  She  does  not  reach 
the  point  of  possession  of  the  soil  except  by  virtue  of  a  struggle. 
She  must  stifle  other  plants  too  near  to  herself,  and  must  exert  an 
activity  to  the  end  that  precedence  is  established  in  her  favor, 
and  that  neither  the  light  nor  the  mineral  elements  of  the  soil 
which  are  necessary  will  be  abstracted  to  her  detriment.  The 
life  of  a  plant  is  bound  up  with  an  exclusive  possession  of  the  soil 
which  it  exploits.  This  possession  is  still  maintained  at  the  period 
of  reproduction. 

1  [Illustrations  and  specific  descriptions  follow.] 


Chap.    X.]  NATURAL   ORIGIN   OF   PROPERTY  295 

If  the  seeds  fall  too  near  the  plant  mother,  they  will  germinate 
in  an  impoverished  soil ;  their  leaves  will  not  receive  sufficient 
light ;  they  will  not  find  the  resources  necessary  to  their  life ;  and 
they  will  contest,  but  without  profit,  those  necessary  for  the  life 
of  the  plant  mother.  Individual  possession  of  the  soil  is,  therefore, 
as  necessary  to  the  plant  as  it  is  perhaps  to  a  solitary  animal  of 
the  chase.  As  in  the  case  of  animals,  only  those  species  which 
do  not  come  into  immediate  competition  are  able  to  subsist  with 
it  on  this  territory.  Plants  thus  realize  conditions  analogous  to 
those  of  birds  ;  they  live  under  the  cantonment  of  the  lion.  There- 
fore the  adaptations  of  the  plant  lead  to  a  dispersion  of  the  seeds. 
The  species  is  thus  established  in  a  territory  more  or  less  widely 
extended  which  also  makes  secure  its  future,  and  the  destiny  of 
the  individuals. 

Certain  plants  project  their  seeds.  This  projection  may  be 
caused  by  desiccation,  turgescence,  or  by  drops  of  rain  the  force  of 
which  carries  the  seeds  a  small  distance  from  the  plant  mother. 
Certain  seeds  are  transported  by  water ;  sometimes  seeds  issuing 
from  ripe  fruits  which  open  are  set  adrift;  and  sometimes  the 
fruit  itself  becomes  detached  and  the  seeds  fall  away  one  by  one 
subject  to  the  hazards  of  a  stream.  The  wind  also  is  an  important 
factor  in  disseminating  the  reproductive  elements  of  plants.  In 
such  case,  the  seeds  are  very  small  as  are  the  microscopic  spores 
of  the  mushroom,  or  they  are  provided  with  wings  or  aigrettes 
which  permit  them  to  travel  over  considerable  distances.  Animals, 
too,  play  their  part  in  the  dispersion  of  seeds.  Finally,  certain 
plants  themselves  bury  their  fruits.  This  is  the  case  with  "  arachis 
hypogsea  "  whose  stem  enlarges,  bends  back,  and  penetrates  the 
earth  with  its  pericarp.  The  same  is  true,  also,  of  *'  trifolium 
subterraneum  "  which  enlarges  its  stem  as  soon  as  its  flowers  have 
become  fertilized,  turns  down,  and  thus  tends  to  bury  its  seeds. 

§  9.  Forms  of  Plant  Life.  The  manifestations  of  property" 
among  plants  which  we  have  examined  have  been  of  the  individual 
type.  The  explanation  is  that  their  structure,  their  adaptations, 
and  their  conditions  of  life  have  put  them  in  isolation,  and  have 
scarcely  made  possible  any  tendency  toward  association  in  the 
very  simple  and  temporary  phenomenon  of  fecundation.  Fecun- 
dation among  these  types  is  produced,  except  in  rare  instances,  by 
the  displacement  and  union  of  procreative  germs.  For  the  larger 
part,  this  is  effected  by  external  phenomena  which  do  not  require 
any  eft'ort  on  the  part  of  the  individuals  concerned.  More  often 
than  among  animals,  the  associative  tendency  among  solitary 


296  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

plants  is  expressed  faintly,  in  an  embryonic  fashion,  and  hardly 
distinguishable. 

Nevertheless,  there  are  species  among  plants  where  the  associa- 
tive impulse  prevails  over  the  individual.  This  leads  to  the 
creation  of  true  social  groups.  These  types  are  not  solely  deter- 
mined by  coexistence  of  a  large  number  of  individuals  which  form 
a  colony;  but  they  lead  to  such  conditions  and  in  a  manner  so 
definite  that  we  are  justified  in  considering  them  as  realizing  a 
distinct  predominance  of  the  associative  tendency. 

Certain  species,  therefore,  do  not  live  as  indifferent  individuals 
more  or  less  scattered  among  themselves  and  in  the  midst  of  other 
species.  These  plants  appropriate  exclusively,  or  nearly  so, 
extended  spaces.  They  exclude  all  other  plants,  but  they  permit 
some  to  live  with  them.  The  first  are  called  social  species,  the 
second  are  satellite  species. 

Social  plants  respond  to  types  which  are  either  constant  or 
inconstant.  The  social  type  is  constant  when  the  species  lives 
exclusively  under  a  social  form;  it  is  inconstant  when  the  indi- 
viduals may  live  either  in  isolation  or  in  association.  It  is  uni- 
social  when  it  includes  only  one  species;  it  is  pluri-social  when 
it  includes  two  or  more  species.  Satellite  plants  depend  for  their 
existence  on  the  society  to  which  they  are  attached.  They  live 
under  its  shelter,  if  it  is  arborescent,  and  within  its  cluster,  if  it 
is  herbaceous.  This  association  fashions  the  life  of  the  satellite 
to  such  an  extent  that  when  it  is  broken,  the  satellite  is  unable  to 
maintain  himself.  A  social  phenomenon  guides  its  life  and  hems 
in  its  cycle  of  existence.^ 

III.    Forms  of  Property  among  Fish 

§  10.  The  Temporary  Shelter  and  the  Abode.  At  the  outset, 
'we  see  that  among  fish  the  facts  of  possession  are  essentially 
individual.  They  keep  the  hunters  in  isolation,  and  sometimes 
these  facts  have  a  connection  with  protective  conditions.  Some 
fish  hide  in  the  sand  to  watch  for  their  prey,  but  this  occupation 
of  the  earth  is  temporary,  variable,  and  does  not  establish,  either 
by  way  of  industry  or  relative  importance,  an  instinctive  fact  of 
property.  Property  in  its  first  stage  is  encountered  among  eels 
which,  when  they  hide  themselves  in  the  slime,  remain  in  the  holes 
which  they  excavate  along  river-banks.     It  is  also  seen  among 

1  [Here,  as  elsewhere,  following  a  general  statement,  specific  descrip- 
tions are  given.     The  whole  work  is  pictorially  illustrated.] 


Chap.  X.]  NATURAL  ORIGIN  OF  PROPERTY  297 

conger  eels,  which  when  they  do  not  profit  by  the  refuge  afforded 
by  rocks,  dig  cavities  in  the  sand  or  mud.  At  the  beginning  of 
the  dry  season  the  gymnate  electric  eel  by  revolving  about  digs 
a  deep  hole  in  the  mud.  It  takes  refuge  there  when  the  water  of 
the  pond  in  which  it  lives  threatens  to  recede.  The  protopterans, 
likewise,  pass  the  dry  season  in  the  mud  where  they  dig  themselves 
in,  becoming  enveloped  in  a  cocoon  formed  by  a  mucous  secretion, 
which  makes  a  protective  sheath  for  their  bodies. 

Thus  beginning  with  a  phenomenon  essentially  temporary,  as 
is  the  case  where  the  animal  half  buries  itself  in  the  sand  to  wait 
for  its  prey,  we  reach  phenomena  which  have  the  character  of 
permanence  and  where  industry  of  the  individual  plays  its  part. 
There  is  an  adjustment  of  the  materials  of  the  outer  world  and 
adaptation  to  a  habitat  clearly  defined.  An  elementary  fact  of 
property  is  thus  established.     It  is  here  essentially  individual. 

§  11.  Nest- Building  as  a  Fact  of  Property.  The  property 
phenomenon  becomes  more  complex  when  we  reach  the  nest- 
building  stage  among  fish.  Here  it  alread}^  assumes  a  social 
form ;  it  is  more  distinct  and  less  embryonic.  Nests  are  built 
at  the  spawning  season  and  they  have  the  object  of  perpetuating 
the  species.  The  greater  part  of  the  time,  the  eggs  being  de- 
posited, it  is  the  male  who  watches  over  the  nest  and  defends  it 
against  danger.  The  female  does  not  give  any  care  to  the  off- 
spring nor  does  she  take  any  part  in  the  building  of  the  nest. 
Xevertheless,  the  phenomenon  of  property  resulting  from  in- 
dustry, the  employment  of  materials  borrowed  from  the  external 
world,  and  the  defense  of  what  is  created,  have  a  close  connection 
with  perpetuation  of  the  species  in  accord  with  the  fundamental 
fact  which  makes  the  basis  of  the  family.  However  spiritless, 
inconsistent,  or  transitory  it  may  be,  the  fact  exists  none  the  less ; 
and  it  suflfices  to  give  a  primary  social  character  to  the  fact  of 
property. 

Several  stages  are  here  to  be  noticed.  In  the  first,  the  eggs  are 
abandoned,  left  to  the  protection  of  their  shelter.  The  social 
character  of  property  does  not  exist  in  this  case  and  is  not  in  ques- 
tion except  virtually,  so  to  speak,  in  power,  and  not  in  realization, 
being  a  sort  of  transitory,  fugitive,  and  uncertain  attempt  in  that 
direction.  We  find,  for  example,  in  an  elementary  stage,  among 
trout  that  they  are  content  to  burrow  a  hole  in  which  they  deposit 
their  eggs ;  and  we  also  find  in  a  more  advanced  stage  evidence 
of  industry  already  developed,  as  among  the  antennariinae  which 
hide  in  weeds  and  there  establish  a  permanent  habitat.     These 


298  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

latter  fish  construct  true  nests  made  of  sea-weed.  They  gather 
with  their  fins  bunches  of  algae  upon  which  they  deposit  their 
eggs.  They  secrete  a  viscous  substance  which  is  used  to  give 
greater  permanence  to  their  constructions.  These  rounded, 
floating  nests  which  are  of  the  bulk  of  a  cocoanut  are  abandoned 
on  the  floor  of  the  ocean  where  the  young  are  born,  and  where 
during  the  earliest  period  of  their  lives  they  find  a  safe  asylum. 

A  higher  level  is  seen  when  the  male  remains  and  watches  over 
the  eggs.  At  this  point,  the  fact  of  property  becomes  evident. 
It  does  not  waver  between  the  individual  who  constructs  the 
refuge  and  then  abandons  it,  and  the  eggs  and  the  young  which 
occupy  it.  It  becomes  realized  in  all  its  conditions  where  the 
material  thing  which  is  put  together  is  defended  against  all  attack 
and  all  usurpation. 

'  If  we  compare  the  habits  cf  the  bull-head  cf  the  river  with  those 
of  the  trout,  we  will  see  the  essential  difference  which  divides  two 
facts  substantially  analogous.  The  bull-head  male  digs  a  cavity 
in  the  sand  under  a  rock,  causes  the  female  to  lay  her  eggs  in  the 
nest,  and  guards  the  eggs  with  extreme  vigilance  until  they  are 
hatched.  Gessner  recounts  that  the  variegated  labrus  shows  a 
special  affection  for  his  progeny.  The  female  makes  a  cavity  at 
the  entrance,  and  the  male  installs  himself  where  he  watches 
until  the  eggs  hatch.  The  cyclopteridse,  likewise,  place  their 
eggs  in  the  fissures  of  rocks  near  large  algae,  where  the  male 
establishes  himself  alongside  the  openings  and  defends  against 
all  attacks,  even  the  most  ferocious.  When  the  eggs  are  hatched, 
the  young  attach  themselves  to  him,  and  he  returns  to  the  lower 
levels  of  the  ocean. 

In  the  facts  which  we  are  examining  the  scope  of  constructive 
effort  is  quite  rudimentary.  It  develops  and  becomes  organized 
among  the  superior  types.  Certain  blenniidse  are  oviparous; 
they  construct  nests,  and  give  the  most  particular  care  to  their 
progeny.  Some  of  the  siluridse  exhibit  the  same  habits.  Ac- 
cording to  Hancock  the  callichthyidse  and  the  doradinae  construct 
nests  of  leaves  which  they  often  locate  in  cavities  of  a  river-bank. 
The  male  and  female  remain  close  to  the  nest  and  defend  it  w^ith 
the  greatest  vigor  until  the  young  are  hatched.  The  cooperation 
here  of  the  two  parents  is  very  interesting.  It  is'  seen  from  the 
facts  collected,  that  this  is  exceptional.  This  cooperation  is  an 
affirmation  of  the  family,  and  as  a  result  of  the  social  aspect  of 
the  phenomena  which  appear  at  the  spawning  season  when  the 
construction  of  the  nest  becomes  a  fact  of  property.     This  activity 


CliAP.    X.J  NATURAL   ORIGIN   OF   PROPERTY  299 

cannot  possibly  be  regarded  as  purely  individual ;  it  has  a  family 
character,  and  is,  therefore,  in  a  certain  measure,  a  collective 
phenomenon.  On  the  other  hand,  it  is  transitory,  because  it  is 
governed  by  the  conditions  which  establish  the  family.  It  is 
limited  to  the  period  of  incubation  ;  each  year  the  work  is  renewed 
and  also  destroyed ;  and  the  fact  of  property  which  reflects  the 
structure  of  this  family  collectivity  (the  most  elementary  of  all) 
follows  its  destiny,  coming  into  existence  with  it,  and  disappearing 
when  it  disappears. 


All  of  these  facts  show  sufficiently  in  what  case  constructive 
activity  among  fish  marks  out  the  limitations  of  the  instinctive 
facts  of  property.  That  which  is  very  interesting,  nevertheless, 
is  what  has  appeared  for  the  first  time  —  the  dependence  in  which 
these  facts  are  found  on  the  existence  of  the  family  produced  by 
the  most  simple  social  group,  consisting  of  the  male,  the  female, 
or  one  of  these,  and  the  offspring.  These  phenomena  arise  from 
the  pressure  of  the  sexual  and  famil}^  instinct,  and  from  the  tend- 
ency toward  the  protection  of  the  species,  which  determine  the 
facts  of  property,  the  collective  character  of  which  already  appears 
in  a  rudimentary  way.  For  the  rest,  these  phenomena  are  limited 
to  the  period  of  development  of  the  eggs.  We  see  them  produced 
under  the  same  conditions  for  the  protection  of  a  more  complex 
social  structure  as  presented  by  the  stickleback.  In  this  respect, 
this  species  exhibits  the  highest  point  of  development  found  among 
fish. 

§  12.  Social  Organization  of  the  Stickleback.  The  stickleback 
shows  some  very  curious  habits.  It  lives  in  troops  which  defend 
in  common  against  their  enemies.  There  is  realized  in  these 
facts  a  kind  of  grouping  in  a  tribe  in  which  certain  individuals 
sometimes  assume  a  tyrannical  authority.  They  have  been  very 
carefully  observed  in  captivity.  When  they  are  placed  in  an 
aquarium  sufficiently  large  and  abundantly  provided  with  water, 
"  they  swim  from  the  beginning  in  troops,  and  examine  each  nook 
and  corner,"  says  Savage.  "  Suddenly,  one  of  them  takes  pos- 
session of  a  shelter  which  no  doubt  suits  him  better  than  any  other, 
and  then  begins  a  desperate  combat  between  the  first  proprietor 
occupant  and  the  intruder.  .  .  .  Frequently,  the  struggle  lasts 
several  minutes  before  one  of  the  combatants  avows  himself  de- 
feated. The  conqueror  then  shows  the  liveliest  anger ;  he  swims 
behind  the  vanquished  fighter  chasing  him  from  place  to  place 


SOO  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

until,  exhausted,  he  is  not  able  to  go  farther  and  seeks  refuge  in 
the  mire.  The  stickleback  uses  his  spines  with  such  violence 
that  often  his  adversary  is  run  through  from  side  to  side,  and  at 
once  falls  dead.  After  a  while  each  has  chosen  the  place  which 
suits  him ;  and  it  happens  that  in  the  same  basin  many  cf  these 
little  tyrants  maintain  a  surveillance  over  each  other ;  and  if  one 
of  them  quits  the  place  which  he  ought  to  occupy  and  approaches 
that  of  a  neighbor,  the  combat  begins  anew  in  a  fashion  more 
lively  and  ferocious  than  ever." 

Evers  reports  that  the  females,  especially,  torment  and  attack 
the  fish  in  the  basin  which  they  occupy.  Taking  a  position  near 
the  top  of  the  aquarium,  they  observe,  attentively,  all  that  goes 
on  around  them.  If  two  males  approach  in  combat,  they  pre- 
cipitate themselves  with  rage  upon  the  fighters,  sometimes  to  drive 
back  the  fugitive  and  to  compel  him  to  accept  battle,  sometimes 
to  attack  the  victor.  In  all  quarrels  they  are  promoters  of  the 
combat.  Evers  particularly  noted  that  two  females  of  unusual 
size  were  sovereigns  of  the  aquarium.  They  did  not  attack  each 
other,  but  they  inspired  such  terror  in  other  females  who  inhabited 
the  same  basin  that  these  latter  fish  hid  themselves  to  find  food, 
leaving  the  tyrants  to  possess  themselves  of  the  lion's  share.  The 
males,  likewise,  had  to  submit  to  them,  and  they  were  always 
attacked  and  chased  away  when,  pursued  by  other  males,  they 
came  near  them  to  seek  a  refuge.  The  despotism  of  these  two 
megairse  was  such  that  Evers  had  to  withdraw  them  from  the 
aquarium  which  they  literally  had  terrorized. 

When  the  stickleback  is  confronted  by  an  enemy  he  brings  to 
bear  all  his  energies  against  him.  When  Evers  put  a  perch  in 
their  aquarium,  ''  they  mustered  in  troops  and  surveyed  the  enemy 
with  all  their  spines  bristling.  Their  internal  dissensions  were 
for  the  moment  forgotten,  and  as  long  as  the  perch,  their  common 
enemy,  remained  in  the  same  tank,  they  did  not  quarrel  among 
themselves.  ..." 

In  the  spawning  season,  in  May,  June,  and  July,  the  stickleback 
builds  his  nest.  Among  the  broad-tail  species,  the  male  selects 
a  place  where  he  digs  into  the  mud,  and  finishes  by  digging  himself 
in.  He  turns  around  until  he  forms  a  cavity  which  is  surrounded 
by  rock  material  which  has  been  cast  aside.  He  then  rams  down 
grass  which  he  has  matted  and  agglutinated  with  a  mucous  sub- 
stance which  is  excreted  from  the  sides.  He  chooses  his  materials 
with  an  attentive  care,  rejecting  those  which  because  of  their  size 
or  form  cannot  be  utilized.     He  builds  over  the  bottom  of  the 


Chap.  X.J  NATURAL  ORIGIN  OF  PROPERTY  301 

trench  carpeted  with  grass,  a  wall  of  branches  pressed  down  and 
heaped  one  upon  the  other,  and  adds  a  roof. 


These  facts"  show  a  series  of  very  interesting  phenomena.  In 
the  cantonment  of  the  stickleback,  which  chooses  a  special  residence 
which  he  maintains  and  where  he  does  not  permit  any  other  to 
approach  without  combat,  we  find  the  fact  of  individual  property 
all  the  more  notable  in  that  it  is  realized  in  the  bosom  of  the  colony. 
The  stickleback,  in  effect,  constitutes  a  tribe.  Uniting  against 
a  common  enemy,  they  attack  as  a  troop.  The  individuals  as- 
sociate, forgetting  their  rivalries,  when  menaced  by  danger.  .  .  . 

On  the  other  hand,  the  competition  of  individuals  is  very  pro- 
nounced. Predominance  of  the  fact  of  association  is  not  suffi- 
ciently established  to  prevail  over  individual  activity.  This 
activity  is  not  grounded  on  the  necessities  of  the  group  except  in 
cases  of  great  violence  which  threaten  the  colony.  When  this 
menace  disappears  the  interests  of  the  individuals  are  reasserted. 
The  individual  strongly  maintains  his  independence  within  the 
collective  organization  which  is  yet  indefinite.  He  chooses  a 
retreat  which  he  appropriates,  and  which  he  defends  with  force, 
thus  realizing  a  fact  of  individual  property.  He  seeks  to  estab- 
lish his  authority  over  the  entire  colony,  and  his  individual  activity 
is  manifested  by  the  numerous  combats  which  are  habitual  to  him. 
Predominance  of  the  individual  over  the  group  tendency  is  such, 
that  outside  of  the  family  organization,  property  is  individual  in 
form.  This  predominance  is  an  inversion  of  that  among  certain 
hymenoptera  where  the  form  is  collective. 

§  13.  Other  Forms  of  Property.  The  individual  note  also  pre- 
dominates in  part  in  the  matter  of  nest-building  in  the  spawning 
season.  It  is  the  male  and  only  the  male  who  constructs  the  nest. 
He  realizes  the  fact  of  property  by  appropriation  of  materials  and 
by  the  exercise  of  industry.  In  this  the  female  does  not  take  any 
share.  Attracted  by  the  male,  she  deposits  her  eggs  in  the  nest 
and  goes  away.  The  male  cares  for  the  progeny.  He  defends 
them  with  the  same  inveteracy  as  he  safeguards  the  nest  during 
the  period  of  construction.  The  fact  of  property  generated  under 
the  influence  of  reproduction,  and  of  the  sex  and  family  instinct, 
takes  a  more  definite  form  than  it  had  before  among  individuals 
living  in  the  midst  of  the  colony.  It  becomes  a  place  openly 
selected  which  furnishes  a  habitual  retreat,  and  which  the  stickle- 
back defends  against  all  other  members  of  the  colony.     There 


302  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

is  here  no  evidence  of  preparation  or  of  industry.  It  is  a  fact  of 
individual  property  rudimentary  in  form  and  realized  simply 
by  occupation.  A  series  of  such  possessions  coexist  within  the 
group.  Nevertheless,  a  new  fact  arises  with  the  union  of  all  in- 
dividuals and  the  obliteration  of  the  rivalries  which  precede  the 
appearance  of  an  enemy.  The  group  so  conducts  itself  that  there 
is  realized  the  fact  of  collective  property  based  upon  a  series  of 
individual  ownerships,  by  the  possession  of  an  area  more  or  less 
defined  in  which  the  presence  of  a  stranger  is  not  tolerated. 

In  this  social  formation,  family  property  appears  with  the  phe- 
nomenon of  nest-building.  It  is  another  form,  in  certain  respects 
more  elementary,  of  collective  property,  because  it  is  limited  to 
the  individuals  which  constitute  the  family.  Yet,  it  must  be 
noticed,  that  it  is  limited  to  the  male  and  the  eggs,  or  the  offspring, 
since  the  mother  is  expelled  when  she  has  deposited  the  eggs. 
The  family  itself  is  of  a  rudimentary  form.  It  is  transitory  and 
the  family  possession  is  as  transitory  as  itself.  It  is  inferior  in 
form,  for  example,  to  that  of  the  doradinse  where  the  female 
cooperates  with  the  male  in  the  creation  of  a  more  complex  form  of 
family  life.  But  the  family  type  of  the  stickleback  presents  the 
very  interesting  feature  that  it  coexists  with  the  somewhat  in- 
distinct and  rudimentary  forms  of  individual  and  collective  prop- 
erty; and  that  it  arises  in  a  grouping  which  shows  the  essential 
elements  of  a  colony.  This  makes  part  of  a  complex  ensemble 
which  is  not  discovered  among  other  species  of  fish. 

IV.    The  Earliest  Forms  of  Property  among  Men 

§  14.  Primitive  Man.  The  nature  of  this  investigation  ex- 
eludes  any  people  whose  social  organization  has  in  it  any  elements 
of  complexity.  Since  the  phenomena  of  property  are  in  the 
animal  a  reflection  of  its  activities,  its  impulses,  its  structure, 
and  its  habits,  these  phenomena  will  be  comparable  to  those 
which  are  manifested  in  the  nature  of  man,  on  condition  that 
his  activities,  impulses,  structure,  and  habits  are  similar  in 
nature.  In  activity  and  structure,  man  is  a  mammal,  but  in 
his  impulses  and  habits,  having  attained  a  certain  degree  of  evolu- 
tion, he  far  surpasses  animals  the  most  highly  developed  in  the 
social  scale.  It  is  easy  to  point  out  stages  of  human  development 
where  the  complexities  are  too  pronounced  to  permit  of  their 
consideration  for  our  purpose ;  and  it  will  suffice  to  stop  at  a 
point  in  the  scale  of  development,  where  human  society  assumes 


Chap.  X.]  NATURAL  ORIGIN  OF  PROPERTY  303 

a  definite  form  in  a  variety  of  adaptations  which  surpass  those 
found  in  the  animal  world. 

Animal  study  shows  individuals  and  groups  or  colonies  of  hunters 
and  fishers.  Likewise,  among  primitive  men,  there  are  some  who 
live  exclusively  by  the  chase  and  by  fishery.  The  means  of  sub- 
sistence and  the  process  by  which  the  animal  maintains  itself  are 
reflected  in  its  habits.  The  same  statement  holds  for  man,  and, 
therefore,  within  the  limits  of  hunting  and  fishing  peoples,  a  com- 
paris6n  with  animals  will  be  admissible. 

There  are  found  among  animals  those  which  live  not  only  by 
hunting  and  fishing,  but  which  subsist  on  vegetable  products. 
This  kind  of  activity  is  represented  among  uncivilized  men  in  the 
earliest  pastoral  and  agricultural  pursuits.  Pastoral  people  sub-v 
sist  on  the  products  of  their  herds  and  flocks ;  and  the  habits  of 
these  herds  and  flocks  are  reflected  in  their  various  adaptations. 
These  adaptations  are  directly  comparable  to  those  of  herbivorous 
animals  which  live  in  bands  and  exploit  a  definite  common  terri- 
tory. Lastly,  the  cultivators  of  the  soil  in  the  most  primitive 
stage,  where  the  earth  is  not  modified  by  any  artificial  or  complex 
processes  of  industry,  also  are  comparable  to  animals  which  sub- 
sist on  the  vegetal  world  and  exploit  without  modification  a  def- 
inite territory.  However,  we  shall  confine  our  attention  to  a 
stage  of  development  far  removed  from  that  of  agriculture  in  order 
that  we  may  remain  within  limits  which  permit  the  strictest  ap- 
plication of  the  comparative  method. 

§  15.    Tools  and  Weapons.     If  primitive  man  appears  directly 
comparable  to  the  animal  in  the  generality  of  his  habits,  there  is, 
nevertheless,  one  very  characteristic  aspect  in  which  he  is  greatly 
superior  —  in  the  making,  use,  and  possession  of  tools,  weapons,  , 
and  garments. 

An  important  factor  of  evolution  springs  up  out  of  this  activity 
of  man.  In  virtue  of  it,  he  becomes  able  to  establish  himself  in 
hostile  surroundings,  to  struggle  victoriously  against  other  species 
of  animals,  and  to  react  upon  the  external  world  and  to  modify 
it  to  his  advantage.  Weapons  and  tools,  which  in  the  beginning 
are  not  differentiated,  are  the  most  important  elements  which 
have  affected  the  development  of  primitive  man.  Clothing  gives 
him  a  superior  resistance  to  his  surroundings  without  drawing  too  > 
heavily  on  his  vital  forces.  In  this  regard,  animals  are  subjected 
to  the  necessity  of  sluggish  and  almost  constant  adaptations.  A 
modification  of  the  body  itself  becomes  a  tool,  a  weapon,  and  a 
defense.     The   most   formidable   weapons   carried   by  insects  — 


304  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

pincers,  scissors,  tongs  —  are  adaptations  or  modifications  of  their 
bodies.  The  envelope  which  incases  the  body  is  a  cuirass.  Among 
certain  animals,  their  hanging  cheeks  are  a  veritable  small 
storehouse  for  food,  and  certain  rodents  carry  in  their  distended 
mouths  the  vegetable  products  which  they  accumulate  against 
the  winter.  The  pouch  of  the  pelican  has  a  similar  function. 
The  stomach  of  ruminants  is  adapted  to  form  a  kind  of  storehouse 
where  food  is  stored  up  which  may  be  later  again  masticated. 
Lastly,  we  see  in  the  trunk  of  the  elephant,  or  in  the  hand  of  the 
ape,  a  prehensile  organ  which  is  particularly  developed  in  man 
and  by  means  of  which  he  prolongs  his  activity  in  the  creation  of 
weapons  and  tools. 

There  appears  to  be  a  transient  utilization  of  things  among 
animals  in  the  sense  of  tools  and  weapons.  Apes  throw  certain 
projectiles  —  rocks,  cocoanuts,  branches,  shells  —  in  self-defense. 
It  is  claimed  that  certain  bears  know  how  to  throw  rocks,  and  that 
certain  anthropoids  make  use  of  a  staff.  We  have  only  imperfect 
knowledge  of  primitive  tools.  The  study  of  M.  Rutot  on  the 
eolithic  age  shows  the  ancestor  of  man  using  flints  scarcely  modi- 
fied by  his  industry  and  not  employed  as  permanent  tools.  There 
is  a  point  of  transition  between  the  tool  used  momentarily  by 
an  animal  and  then  immediately  thrown  away,  and  the  earliest 
weapons  or  tools  of  flint  which  characterize  primitive  man. 


It  is  seen  that  the  use  of  weapons  and  tools  does  not  distinguish 
man  from  the  animal.  Nevertheless,  when  they  are  introduced 
in  a  permanent  fashion  in  human  activity  they  exhibit  a  fact 
with  a  twofold  interest ;  first,  from  the  point  of  view  of  the  his- 
tory of  civilization,  and,  second,  from  the  standpoint  of  property. 
The  second  of  these  alone  comes  under  consideration  here. 

,  §  16.  Tools  and  Weapons  as  Individual  Property.  The  weapons 
V^l  and  tools  of  primitive  man  are  in  fact  objects  of  individual  owner- 

1  ship.     They  are  a  prolongation  of  the  individual  himself,  created 

'  by  his  powers  and  his  perceptions  as  a  kind  of  added  force  to  his 
personality.  Created  by  man  out  of  materials  taken  from  the 
external  world,  and  modified  and   used  in  view  of  a  given  end, 

\  they  present  beyond  doubt  all  the  character  of  a  fact  of  property. 

/But   they  are  facts  of  individual  property  because  they  remain 

/  connected  with  the  personality  of  the  maker.    It  is  only  when  tools 

become  complex  that  they  take  on  a  scope  other  than  individual ; 

it  is  only  when  social  life  has  become  somewhat  developed  that  a 


J 


Ch.\p.    X.]  NATURAL  ORIGIN   OF   PROPERTY  305 

part  of  them  is  collectively  owned.  The  weapons  or  tools  (the 
two  are  not  distinguished)  of  primitive  man  are  as  necessary  to  his 
life  and  its  security  as  the  hand,  the  legs,  or  the  arm.  They  re- 
main personal  to  the  owner  and  are  so  far  identified  with  him  that 
among  primitive  men  when  the  owner  dies  they  are  placed  at  his 
side  in  order  that  he  may  not  be  unprovided  with  such  implements 
in  the  next  world,  or  they  are  broken  up  so  that  their  spirit  may  ac- 
company that  of  the  dead  person.  . . .  The  conclusion  follows  that 
no  more  among  men  than  among  animals  does  individual  owner- 
ship appear  to  have  a  social  origin ;  that  it  is  foreign  to  all  ideas  of 
that  type ;  and  that  it  is  simply  a  phenomenon  which  goes  with 
the  individual  in  the  midst  of  phenomena  of  association. 

Weapons  and  tools  exhibit  considerable  development,  from  the 
standpoint  of  ownership,  among  primitive  men;  and  it  is  in  this 
development  alone  that  he  is  distinguished  from  animals.  There 
is  established  in  the  case  of  primitive  man  a  new  and  more  com- 
plex fact  of  property ;  it  takes  so  definite  a  form  that  it  follows  the 
owner  even  after  his  death,  and  so  that  neither  another  individual 
of  the  group  nor  even  the  group  itself  can  inherit.  The  social 
attribute  is  entirely  absent.  It  is  only  later  that  inheritance  gives 
property  a  social  quality.  In  its  earliest  stages  property  is  not 
based  on  anything  other  than  the  expression  of  man's  nature  as  it 
also  expresses  the  nature  of  the  animal.  Property  for  man  as  for^ 
the  animal  is  a  prolongation  of  personality.  J 

§  17.  Clothing.  It  is  not  difficult  to  see  that  the  same  observa- 
tions apply  to  clothing.  When  it  is  not  fashioned  for  the  complex 
purpose  of  religious  ornament,  when  the  necessity  of  organic  pro- 
tection against  the  outer  world  commands  its  creation  and  use, 
it  constitutes,  whether  we  consider  the  simple  raiment  of  the 
Fuegian  or  the  ornate  dress  of  the  Eskimo,  an  adaptation  of  mate- 
rials of  the  external  world  by  means  of  man's  industry ;  and  this 
adaptation  being  individual,  the  fact  of  property  .which  springs, 
from  it  is  also  individual.  -^ 

In  this  respect,  man  is  not  differentiated  from  the  animal  as 
completely  as  in  the  use  of  implements.  Among  mollusks  (e.g. 
the  gaping  limidse),  among  crustaceans  (e.g.  the  dromia),  among 
a  number  of  worms  which  excrete  a  substance  which  envelops 
the  body,  and  larvae  which  spin  a  cocoon,  there  is  realized  a 
fact  which  from  the  standpoint  of  organic  protection  has  all  the 
qualities  of  what  is  properly  called  clothing. 

The  same  bonds  of  connection  in  the  evolution  of  man  and 
animals  which  governed  the  use  of  tools  and  weapons  are  found  in 


y 


306  FACTORS  OF  LEGAL  EVOLUTION  [Pabt  II. 

the  use  of  clothing.  The  employment  of  a  cover  for  organic  pro- 
tection is  found  among  animals  either  as  a  permanent  device  or 
in  outline  as  a  temporary  resort.  Examples  of  the  first  are  suf- 
ficiently evident  among  men.  Of  the  second  an  interesting  illus- 
tration is  furnished  in  certain  parts  of  the  Congo  where  the 
natives  use  herbage  to  cover  themselves  from  rain,  and  make  a 
shelter  which  is  as  temporary  as  certain  phenomena  of  the  same 
class  among  animals. 

§  18.  Food  Reserves.  We  have  already  seen  to  what  extent 
among  birds  the  phenomena  of  foresight  and  ownership  are  con- 
nected with  the  accumulation  of  stores  of  food.  The  same  form 
of  property  was  also  found  established  among  mammals.  In 
this  regard,  primitive  man  shows  an  organization  sensibly  inferior 
to  these  two  classes  of  animals. 

It  is,  indeed,  rare  that  peoples  which  live  by  the  chase  and  by 
fishery  store  up  food.  They  are  absolutely  bound  to  the  resources 
of  their  habitat,  and  their  faculties  of  prevision  scarcely  go  beyond 
the  present  hour.  It  is  only  when  the  rudiments  of  civilization 
I -begin  to  appear,  or,  rather,  when  the  inclination  toward  a  fixed 
>  place  of  abode  asserts  itself,  that  primitive  man  lays  up  a  reserve 
of  food  materials.  We  may  instance  as  examples  the  Eskimos 
and  the  Aleuts  who  when  the  fishing  season  is  over  dry  and  pre- 
serve their  supplies  of  fish.  .  .  . 

These  food  reserves  take  the  form  either  of  family  property  or 
(of  collective  property.  They  are  generally  deposited  at  the  side 
/of  the  habitat  and  belong  then  to  the  family  grouped  in  the  midst 
of  the  shelter.  Sometimes  the  entire  people  work  in  common  in 
the  creation  of  a  food  reserve,  and,  as  was  the  case  with  the  gran- 
aries of  the  Indians  of  the  Yosemite  Valley^  these  food  reserves  are 
collective  property  in  which  are  reflected  a  coordination  of  efl^orts 
toward  a  common  end.  Thus,  among  the  Iroquois,  which  prac- 
ticed the  system  of  common  habitations,  the  supplies  of  food  also 
were  collective  in  form  of  ownership.  Lastly,  among  the  pastoral 
Todas,  which  exhibit  a  very  interesting  social  organization,  the 
food  supplies  are  the  common  property  of  the  village. 

It  is  especially  with  the  appearance  of  civilization,  when  primi- 
tive man  becomes  settled  and  exploits  the  soil,  more  or  less  habit- 
ually, that  regard  for  the  future  springs  up  and  becomes  marked 
in  provision  for  a  reserve  of  food.  Permanence  of  habitat  is  the 
condition  essential  for  solidifying  this  form  of  property.  It  is 
dominated  here  by  the  same  conditions  which  govern  in  the  ani- 
mal world. 


Chap.    X.]  NATURAL  ORIGIN   OF   PROPERTY  307 

§  19.  Hunting  Land.  We  have  already  seen  how  the  hunting 
land  is  clearly  marked  out  among  animals.  We  meet  the  same 
phenomenon  among  primitive  men,  but  as  is  the  case  among 
animals,  we  also  find  nomadic  peoples  which  present  the  very 
simple  qualities  of  the  hunting  animal  and  which  show  the  most 
complete  subjection  to  the  conditions  of  its  life. 

The  Bushmen  are  essentially  nomads.-  They  wander  at  random 
in  the  desert  of  Kalahari  in  little  bands  of  fifteen  or  twenty  in- 
dividuals. They  settle  for  several  days  at  points  where  they  do 
not  encounter  enemies.  They  construct  rudimentary  shelters 
which  are  more  like  screens  than  abodes.  They  use  rude  vessels 
made  of  clay  and  of  wood.  Apart  from  dogs,  they  do  not  raise 
any  domestic  animals.  The  habits  of  wild  animals  are  well 
known  to  them;  they  follow  them  in  their  migrations,  as  the 
lion  habitually  tracks  the  nomadic  peoples  of  oriental  Soudan, 
from  the  steppes  to  the  forest,  or  as  the  flitter-mouse  sometimes 
follows  troops  of  cattle  in  their  wanderings. 

Nomadic  peoples,  however,  have  a  cantonment  limited  by  their 
surroundings.  Sometimes  this  territory  is  limited  by  the  presence 
of  superior  peoples  who  are  around  them  and  who  keep  them  con- 
fined to  a  certain  habitat ;  and  sometimes  this  territory  represents 
a  positive  idea  of  possession  which  nomadic  tribes  defend  against 
occupation  by  others. 

The  Australian  savage  is  a  hunter ;  he  roves  about  and  scarcely 
thinks  of  constructing  a  substantial  dwelling.  When  night  over- 
takes him,  he  hastily  erects  a  shelter  consisting  of  branches  driven 
into  the  earth.  A  couch  is  made  of  banana  or  palm  leaves  or  of 
long  herbs.  Often,  if  the  night  is  mild,  he  cuts  down  a  tree  and 
sleeps  among  the  branches.  Australians  travel  usually  in  small 
groups  and  all  the  families  encamp  at  the  same  place.  But  there 
are  territories  of  the  chase  which  are  strictly  delimited,  and  where 
a  violation  of  the  boundaries  involves  war  between  the  tribes.^   ^ 


The  preceding  observations  relate  to  hunting  and  fishing  peoples ; 
that  is  to  say,  to  those  whose  conditions  of  life  and  whose  pursuit 
of  subsistence  approaches  most  closely  the  habits  of  roving  or 
non-roving  animals.  There  are  scarcely  yet  to  be  found  among 
the  types  discussed  any  peoples  which  begin  to  practice  even  the 

^  [At  this  point  the  author  describes  the  habits  of  Pygmies,  the  Veddahs, 
Eskimos,  Botocudos,  and  various  other  tribes  and  peoples,  exhibiting 
types  of  family  and  collective  property.] 


308  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

earliest  arts  of  agriculture  alongside  hunting  and  fishing.     Never- 
theless, in  groupings  of  uncivilized  peoples,  there  are  discovered 
the  three  forms  of  property  which  undergo  a  process  of  integraticn 
and  superaddition  as  in  the  animal  world.     Individual  ownership 
is  shown  in  weapons,  tools,  and  clothing,  which  is  as  much  an 
expression  of  the  individual  himself,  as  the  direct  result  of  his 
presence  within  the  social  group.     Next,  family  ownership  is  mani- 
fested, generally  in  the  shelter,  and  sometimes  in  hunting  land 
I  whose  limits  are  more  or  less  clearly  defined.     Lastly,  collective 
i  ownership  is  shown  in  a  common  territory  within  the  limits  of 
which  individuals  and  famil}^  groups  have  their  play.     It  is  well 
I  to  note  that  as  in  the  case  of  animals,  the  group  among  primitive 
men  is  sometimes  limited  by  the  family. 

§  20.  Primitive  Pastoral  Tribes.  We  had  already  found  in 
our  consideration  of  mammals  ^  that  the  habits  of  ungulates 
living  in  troops  depend  from  the  property  point  of  view  on  the 
manner  in  which  they  find  their  subsistence.  Some  of  them,  such 
as  the  equidae  of  the  steppes  of  Asia  and  Africa,  rove  in  bands  of 
greater  or  less  numbers  and  continually  range  over  a  widely  ex- 
tended terrain  in  search  of  pasturage .  They  never  remain  anywhere 
for  a  fixed  period.  But  there  are  others  like  the  horses  of  the 
pampas,  the  bison,  and  the  elk  which  become  identified  with  a 
definite  territory  where  they  possess  the  domain  occupied,  either 
in  a  permanent  or  temporary  aspect,  and  change  their  residence 
only  when  its  resources  have  become  exploited  or  exhausted. 

We  have  already  had  occasion  to  point  out  how  among  pastoral 
peoples  social  organization  is  maintained  by  adaptation  to  the 
habitats  of  the  animals  upon  which  they  depend  for  existence.  An 
attempt  will  be  made  here  to  demonstrate  this  statement  and  to 
show  how  there  is  repeated  in  the  structure  of  human  society  the 
same  type  of  organization  which  is  found  in  colonies  of  herbivo- 
rous animals. 

The  fjeld  I>apps  led  by  reindeer  show  to  what  degree  of  sub- 
jection the  pastoral  world  may  lead  primitive  man  whose  exist- 
ence depends  on  exploitation  of  a  herd.  "  What  kind  of  a  life  is 
this  I  "  exclaims  Brehm.  "  They  do  not  have  any  will  of  their 
own.  They  are  led  by  their  herds.  The  reindeer  go  where  they 
please;  the  Lapps  follow.  The  fjeld  Lapp  is  a  veritable  drg. 
For  a  month  at  a  time,  for  nearly  the  whole  journey,  he  remains 
in  open  air,  suffering  in  summer  with  the  mosquitos,  and  in  win- 
ter with  the  frost,  against  which  he  is  unable  to  defend  himself. 

1  [Not  translated.] 


Chap.  X.]         NATURAL  ORIGIN  OF  PROPERTY  309 

Sometimes,  he  endures  hunger  because  he  is  unwilling  to  will  it 
otherwise.  He  never  bathes,  and  lives  upon  the  coarsest  foods. 
His  type  of  life  renders  him  half  animal."  These  conditions  are 
comparable  to  those  of  Bushmen  hunters  who  follow  herds  of 
animals  in  order  to  find  a  beast  to  kill.  The  difference  lies  in 
the  method  of  subsistence,  which  in  the  pastoral  type  of  man  ex- 
hibits a  very  close  connection  of  dependence  tending  to  become 
reciprocal  between  man  and  animal.  Here,  however,  we  see  the 
most  humble,  the  most  miserable  state  of  man,  where  the  animal 
seems  to  be  more  favored,  and  where  man  lives  at  its  expense.^ 

§  21.  Comparison  of  the  Conditions  which  Reflect  the  Phenom- 
enon of  Property  in  Man  and  Animals.  Summary.  We  have 
attempted  to  show  that  the  customs  of  primitive  man  are  directly 
comparable  to  the  habits  of  animals,  and  that  the  associations 
which  severally  arise  among  them  are  abstractions  resulting  from 
the  complex  relations  which  come  from  the  use  of  weapons,  tools, 
and  clothing,  and  that  they  exhibit  homologous  and  sometimes 
corresponding  stages  of  evolution.  Nevertheless,  there  are  prin- 
ciples derived  from  this  investigation  which  it  will  be  profitable 
to  emphasize.  They  have  a  direct  bearing  on  the  phenomena 
of  property,  because  they  are  realized  in  identical  form  when  the 
same  external  conditions  predominate  and  govern  the  adapta- 
tions of  man  and  animals. 

A  number  of  animals  construct  ha])itations  for  the  winter  and 
other  habitations  for  the  summer.  This  brings  to  light  a  dual 
fact  of  property  by  which  animals  express  their  own  nature  in 
reaction  cr  in  adaptation  to  modifications  in  the  external  world. 
Examples  are  found  all  the  way  from  crustaceans  to  mammals. 

The  same  phenomenon  is  found  in  the  life  of  primitive  man, 
especially  in  the  extreme  north,  where  the  differences  betweeni 
winter  and  summer  are  so  pronounced  that  each  season  requires 
a  special  adaptation  to  the  climatic  situation.  Among  animals 
these  adaptations  may  bring  about  a  hibernating  period.  Man, 
however,  takes  positive  measures  to  combat  these  climatic  varia- 
tions. These  measures  for  the  greater  part  of  the  world  take  the 
form  of  changes  of  dress. 

1  [The  author  next  examines  with  some  detail  a  variety  of  tribes  show- 
ing periodical  occupation  of  pasture  land,  integration  of  family  ownership 
in  collective  ownership  of  land,  regular  migrations  of  uncivilized  men 
compared  with  similar  habits  among  animals,  the  predominance  of  family 
and  collective  ownership  in  the  shelter,  but  with  the  occasional  appear- 
ance of  individual  ownership  in  the  midst  of  family  ownership  of  the 
abode,  and  family  ownership  of  the  abode  connected  with  family  owner- 
ship of  cultivated  land,  and  collective  ownership  of  hunting  land.] 


310  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 


An  examination  of  the  kinds  of  adaptations  made  respectively 
by  man  and  animals  does  not  disclose  that  the  efforts  of  man  are 
appreciably  superior  to  those  of  animals  in  combating  climatic 
changes.  A  comparison  of  the  winter  and  summer  habitations  of 
man  and  animal  shows  that  both  react  by  the  same  method  to 
external  conditions.  Stage  for  stage  in  their  development  both 
are  linked  in  a  chain  of  evolution  of  which  the  parts  are  similar 
and  directly  comparable. 

The  importance  of  the  rendezvous  especially  among  primitive 
wandering  or  nomadic  tribes  is  well  known.  Among  the  Aus- 
tralians it  is  by  means  of  a  rendezvous  that  small  scattered  bands 
gather  for  certain  fetes,  dances,  religious  observances,  "  corrob- 
orees  '^  and  also  for  settlement  of  their  differences.  Often  two 
or  three  hundred  negroes  of  different  tribes  gather  together  on  a 
fixed  day.  This  custom  brings  into  existence  the  principle  of 
concentration  as  the  expression  of  collective  personality  period- 
ically asserted.  This  principle  has  a  transitory  life  disappearing 
when  the  groups  separate  and  return  to  their  nomadic  habits. 
This  principle  which  has  no  effective  marks  represented  by  occupa- 
tion of  land  becomes  fixed  when  primitive  man  shows  any  tendency 
to  become  settled. 

The  Botocudos  in  their  more  permanent  encampments  arrange 
their  huts  in  a  half -circle  about  an  open  space  which  is  their  place 
of  meeting.  When  the  village  becomes  organized,  when  customs 
develop,  and  the  activities  of  the  group  become  more  definite, 
the  place  of  rendezvous  assumes  a  determinate  form  and  becomes 
a  true  expression  of  social  personality.  .  .  .  There  is  seen  in  this 
phenomenon,  evolving  originally  from  the  rendezvous  of  nomadic 
tribes,  the  earliest  form  of  the  public  place  of  our  cities,  the  forum 
of  the  ancient  city,  and  the  great  place  of  our  villages  which  still 
remains  a  factor  of  collective  life. 

This  evolution  is  very  ancient.  In  truth,  its  beginnings  are  not 
found  in  the  history  of  mankind,  but  reach  back  into  the  animal 
domain.  It  is  there  found  to  present  the  same  attributes  of  a 
fixed  place  integrated  with  an  association ;  it  is  a  true  village. 
Here,  again,  social  organization  reflected  in  facts  of  property  pre- 
sents a  situation  which  is  similar  and  comparable  among  men  and 
animals.^ 

1  [A  number  of  striking  descriptions  of  the  animal  world  follow  which 
bear  out  the  author's  claim  of  similarity  in  these  phenomena  in  the  human 
sphere  and  the  animal  domain.] 


Chap.  X.]         NATURAL  ORIGIN  OF  PROPERTY  311 

Sometimes  there  appear  within  the  social  group  among  primitive 
men  and  among  animals  other  forms  of  property.  They  are  due 
to  isolation  of  the  individual  in  the  midst  of  the  colony.  In  their 
wavering  form,  they  affect  the  habits  of  the  animal  without  giving 
place  to  a  fact  of  property  ;  but  they  modify  the  abode  when  they 
spring  up  in  a  more  complex  totality  of  adaptations  in  such  manner 
as  to  impress  on  them  a  special  type. 

Among  various  species  of  animals  which  live  in  bands,  the  young 
males  at  a  certain  age  are  expelled  from  the  group.  They  follow 
the  troop  from  which  they  have  been  ejected  until  they  are  able 
to  form  a  band  of  their  own  by  attracting  from  the  outside  young 
females.  Savage  horses,  the  "  equus  hemionus  ",  the  wild  ass, 
and  certain  ruminants  furnish  characteristic  examples.  .  .  . 

Primitive  customs  represent  a  permanent  inheritance  of  animal 
habits  and  are  of  a  social  type  essentially  comparable.     Among 
animals  there  is  seen  the  existence  of  group  property  in  the  midst  I 
of  collective  ownership,  in  the  abode,  in  hunting  land,  and  in  j 
pasturage.     A  corresponding  phenomenon  is  discovered  among  a 
number  of  peoples  which  practice  the  system  of  using  a^mmop 
abode,  as,  for  example,  the  Pueblo  Indians  where  the  families  ,' 
occupy  special  compartments^nd  the  unmarried  persons  lodge  7 
apart  in  a  common  space.     Sometimes  common  abodes  are  found 
where  outside  the  family  habitaJ:ions  of  the  village  the  boys  are 
grouped  in  one  place  and  the  girls  in  another.     It  is  thus,  for 
example,  among  one  of  the  tribes  of  the  Andaman  Islands  where 
the  boys  and  the_girls,_livejn  special  houses  and  never  pass  the 
night  in  the  habitation  of  the  married  persons.   .   .   . 

It  will  be  useless  to  extend  the  enumeration  of  facts  which  show 
how  the  customs  of  primitive  man  are  essentially  analogous  to 
the  habits  of  animals.  We  find  that  food  reserves,  hunting  lands,  , 
and  ownership  of  the  abode  are  disposed  according  to  the  same  > 
individual,  family,  and  collective  forms.  When  we  pass  from 
societies  of  hymenoptera  and  ants,  we  do  not  discover  that  power- 
ful concentration  of  collective  personality  which  effaces  all  that 
is  individual  in  character  and  which  reacts  upon  the  anatomical 
and  physiological  structure  of  the  animal  itself.  When  we  arrive 
at  vertebrate  life  —  fish,  birds,  mammals,  and  lastly  man  —  we 
see  the  forms  of  association  stratified  in  a  series  more  and  more 
extended  from  a  collective  point  of  view,  and  employing  the 
elements  with  which  the  animal  has  realized  its  various  activities. 
By  a  process  in  which  individual  or  family  ownership  is  integrated 
within  the  folds  of  collective  property  without  ceasing  to  exist. 


312  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

man's  industry  in  the  making  of  weapons,  tools,  and  clothing 
results  in  the  creation  of  analogous  forms  of  ownership  where 
property  takes  on  a  social  form  and  at  the  same  time  remains 
ineffaceably  individual.  This  study  then  shows  that  we  cannot 
disregard  the  animal  world  in  an  investigation  of  the  social  origins 
of  man.  In  analogous  circumstances,  what  is  experienced  in  the 
very  diverse  stages  of  organic  evolution  of  the  animal  itself  has 
its  counterpart  in  the  social  life  of  the  animal  kingdom.  But  the 
fact  of  sociality  is  not  connected  with  animal  evolution ;  it  is  dis- 
tinct from  it ;  and  it  has  laws  of  its  own,  which  do  not  depend  on 
the  biological  perfection  of  this  or  that  species.   .   .   . 

V.    Conclusions 

§22.    Essential    Principles    of    the    Phenomenon    of    Property. 

The  preceding  investigation  makes  it  possible  now  to  state  in  an 
exact  and  positive  manner  the  qualities  of  the  phenomenon  of 
property,  as  follows : 

1.  Property  is  a  phenomenon  connected  with  the  earliest 
manifestations  of  life ; 

2.  In  the  beginning  it  is  the  expression  of  physiological  struc- 
ture and  of  adaptation; 

3.  It  takes  individual  form,  when  so  required  by  biological 
necessity  for  the  protection  of  the  individual ; 

4.  It  takes  family  form  when  so  required  for  the  protection 
of  the  species,  based  on  the  instinct  of  sex ; 

5.  It  takes  collective  form  when  that  form  is  necessary  for 
the  protection  of  the  species,  based  on  phenomena  of  association 
considered  as  a  generalization  and  abstraction  of  the  family 
grouping ; 

6.  The  individual,  family,  and  collective  forms  of  property 
are  specifically  distinct  each  from  the  other  : 

{a)  The  individual  form  is  characterized  by  the  fact  that 
it  reflects  the  special  structure  and  the  activities  of  the  animal 
in  isolation ; 

(6)  The  family  form  is  characterized  by  the  predominance 
of  the  associative  tendency  limited  by  a  direct  parental  con- . 
nection ; 

(c)  The  collective  form  is  characterized  by  the  prepon- 
derance of  the  associative  tendency  unlimited  by  any  other 
bond  of  connection. 


Chap.    X.]  NATURAL  ORIGIN   OF   PROPERTY  313 

Numerous  examples  show  that  when  the  family  is  instituted, 
the  group  dissolves,  and  that  as  a  result,  it  is  [frequently]  estab- 
lished t )  the  detriment  of  group  cohesion.  Among  birds,  this 
phenomenon  is  often  found,  as  well  as  among  mammals,  and  par- 
ticularly among  cetaceans,  which  are  social  when  living  in  troops 
and  which  separate  by  couples  at  the  mating  season. 

These  facts  demonstrate  that  there  is  not  always  social  unity 
in  the  midst  of  the  phenomenon  of  collectivity.  The  family 
sometimes  stands  in  opposition  to  society.  This  opposition  is 
sufficiently  potent  at  the  time  of  sex  attraction  to  disintegrate 
the  band  or  colony.  The  colony  is  formed  again  only  when  the 
young  of  the  families  have  become  adults.  The  family  is  then 
broken.  There  is  then  an  equilibrium  between  the  social  tend- 
ency and  the  family  tendency.  *  These  two  tendencies  may 
operate  to  the  same  end ;  in  that  case  the  family  is  integrated  within 
society ;  or  they  work  at  cross  purposes,  and  then  the  family  is 
in  opposition  to  society. 

It  follows  that  in  the  animal  world,  and,  in  consequence,  also, 
among  men,  the  family  form  of  life  constitutes  a  type  of  its  own ; 
that  it  is  sometimes  destructive  of  association  and  is  not  subor- 
dinated to  it ;  that  it  may  predominate  over  the  association ; 
and  that  it  is  only  when  a  series  of  influences,  converging  in  char- 
acter, operate  upon  it  that  it  will  integrate  within  the  social  group 
without  destroying  it.  This  shows  at  once  that  the  specific 
quality  above  given  to  family  property  and  to  collective  property 
is  justified.  But  it  demonstrates  also  that  the  old  notion  which 
gave  to  the  family  the  value  of  a  social  group  or  of  social  unity 
is  not  well  founded.  There  may  be  society  without  the  existence 
of  family  organization.  This  is  the  situation  among  all  animal 
colonies  which  are  not  formed  until  the  family  formation  has  dis- 
appeared. 

The  family  then  is  not  essential  to  the  organization  of  society. 
The  clan  sometimes  is  an  extension  of  the  family,  but  among  cer- 
tain animal  species,  as  among  men  also,  it  is  not  always  the  direct 
parental  connection  which  forms  the  basis  of  the  group.  Somer 
times,  also,  the  group  cannot  become  established  until  the  family 
disappears.  There  is  an  antagonism  between  these  two  types. 
There  are  numerous  examples  among  certain  species  of  mammals 
where  the  females  after  impregnation  form  a  separate  troop  while 
the  males  form  another.     Association  exists,  but  not  the  family. 

The  family  cannot  therefore  be  regarded  as  a  social  unity. 
Society  is  not  a  grouping  of  families,  the  associative  tendency 


314  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

which  arises  from  the  sexual  instinct  often  being  opposed  by  the 
associative  tendency  which  springs  from  protection  of  the  species. 
The  family  is  not  even  an  intermediate  form ;  it  is  entirely  dis- 
tinctive and  singular  in  itself.  .  .  . 

When  certain  primitive  societies  among  men  are  compared  to 
animal  societies,  there  will  be  found  among  the  latter  some  which 
are  superior  to  the  former.  Even  among  animals  the  most  closely 
related  species  are  separated  from  each  other,  from  the  social 
viewpoint,  so  widely  that  the  distance  seems  insurmountable. 
Lastly  we  find  that  collective  society,  realized  in  its  highest  degree 
of  concentration  among  insects  and  not  at  all  in  the  evolution  of 
vertebrates,  does  not  appear  to  lead  to  a  similar  social  formation. 
It  is  at  the  point  where  social  evolution  among  vertebrates  attains 
a  special  sort  of  tendency  that  individual  and  family  forms  become 
in  a  measure  integrated  with  the  collective  form;  whilst  among 
insects  social  evolution  leads  to  maternal  societies  and  to  the  most 
powerful  collective  concentration  which  may  be  accomplished  in 
the  domain  embraced  by  comparative  sociology. 

It  is  not  possible  to  attribute  a  direct  connection  between  social 
phenomena  and  mental  phenomena.  Animals  such  as  the  beaver, 
the  marmot,  or  the  penguin  which  attain  very  complex  social  organ- 
izations are  less  dowered  from  the  viewpoint  of  intelligence  than 
other  neighboring  species  which  live  in  isolation.  Especially  the 
adaptations  which  are  reflected  in  the  social  structure,  and  external 
facts  such  as  the  manner  of  hunting  food,  or  the  care  of  the  young 
at  their  birth,  cr  the  conditions  of  the  habitat,  have  more  of  a  part 
for  or  against  the  institution  of  societies  than  this  or  that  intel- 
lectual phenomenon.  The  curve  of  sociological  perfection  is  far 
from  coincident  with  the  curve  of  animal  development.   .   .   . 

Manifestly  superior  forms  of  organization  have  a  connection 
in  some  measure  with  intelligence.  But  may  we  predicate  a  dif- 
ference based  on  nervous  structure  between  bees,  for  example, 
where  the  permanence  cf  society  extends  beyond  the  life  of  the 
individual,  and  wasps  where  the  society  created  in  the  spring 
by  the  mother  is  destroyed  by  the  frost  of  the  next  winter  ?  The 
permanence  of  the  society  rests  on  the  chances  of  the  winter 
season,  upon  an  external  fact,  perhaps  upon  a  fact  of  industry, 
but  not  upon  mental  superiority.  How  far  is  this  factor  derived 
from  the  social  fact  itself?  It  may  be  the  cause,  but  it  may  per- 
haps also  be  the  consequence.  Among  primitive  men,  we  find 
certain  peoples  living  by  the  chase  and  by  fishery  but  with  a  plain 
tendency  toward  civilization.     They  are  held  back  by  their  con^ 


(  iL\p.    X.]  NATURAL   ORIGIN    OF    PROPERTY  315 

ditions  of  life  and  perhaps  by  struggles  with  enemy  tribes  which 
surround  them.  Nevertheless,  whatever  may  be  the  obstacles, 
they  hold  to  a  certain  fixed  inclination.  The  simple  fact  of  adop- 
tion of  the  process  of  production  in  preference  to  hunting  or  fish- 
ing gives  evidence  of  a  capacity  for  considerable  mental  develop- 
ment. Agricultural  life  will  therefore  be  the  first  step  in  psychic 
evolution.  It  will  be  derived  from'  the  social  form  by  which  it 
has  been  favored. 

The  social  atmosphere  is  reflected  upon  intellectual  development. 
INIodern  man  is  so  far  modified  by  his  surroundings  that  he  cannot 
be  thought  of  apart  from  them.  The  cerebral  system  has  become 
subjected  to  fixed  adaptations  derived  from  heredity.  They  are 
of  such  a  nature  that  the  mental  activities  of  modern  man  cannot 
be  considered  as  analogous  or  comparable  to  the  mental  operations 
of  a  solitary  animal.  Can  a  separation  ever  be  made  in  the  human 
mind  of  that  which  is  individual  and  that  which  is  social  ?  Who 
would  dare  to  affirm  it  in  the  present  state  of  knowledge?  This 
is  a  problem  open  to  investigation;  it  is  one  so  complex  that  it 
will  be  long  before  it  can  be  resolved. 

^Yhat  is  stated  indicates  the  perils  of  a  sociology  which  is  ex- 
clusively based  on  psychology.  There  is  found,  therefore,  in  this 
peculiar  way  of  treating  the  matter,  the  phenomenon  of  causality 
regarded  as  derived  from  its  own  derivative.  The  last  years 
have  witnessed  a  variety  of  books  infected  in  a  high  degree  with 
this  essential  vice.  The  interest  awakened  by  ingenious  specu- 
lations-too  quickly  invented,  in  the  name  of  laws,  in  contemporary 
sociology,  compels  the  belief  that  further  efforts  without  issue,  in 
the  same  direction,  will  not  be  wanting.  At  the  same  time,  how- 
ever, the  necessity  of  a  genuine  science  of  sociology  makes  itself 
more  urgently  felt. 


Chapter    XI  ^ 

RUDIMENTARY  SOCIETY  AMONG  BOYS 

§  1.    Land  Tenure.  i  §  3.   Judicial  Procedure. 

§  2.   Boy  Legislation.  |  §  4.   Boy  Economy. 

EDITORIAL  INTRODUCTION 

When  the  publication  of  the  Johns  Hopkins  University  Studies  began, 
it  was  not  anticipated  by  the  editor  that  any  contributor  would  descend 
lower  in  the  scale  of  institutional  subjects  than  towns,  parishes,  manors, 
etc.  But  Mr.  John  Johnson,  Jr.,  after  contributing  to  the  first  series 
a  valuable  paper  on  "Old  Maryland  Manors",  which  was  noticed  by  Sir 
Henry  Maine  and  by  the  Saturday  Review,  June  30,  1883,  yielded  to  the 
influence  of  a  teacher's  environment,  upon  a  farm-school  for  boys,  and 
began  to  study  the  agrarian  customs  and  institutional  instincts  of  rudi- 
mentary citizens  of  our  larger  republic.  At  first  sight,  such  a  study  of 
juvenile  society  may  appear  boyish  and  somewhat  trivial,  but  a  nearer 
view  of  the  customs  and  institutions  of  the  McDonogh  boys  will  con- 
vince the  reader  that  they  are  worthy  of  scientific  observation.  So 
curiously  picturesque,  however,  is  the  life  of  this  juvenile  society  that 
some  readers  may  suspect  Mr.  Johnson  of  having  written  a  kind  of  politi- 
cal romance  with  a  socialistic  moral.  But  his  statements  are  all  matters 
of  the  strictest  fact,  recorded  with  the  conscientiousness  and  painstaking 
fidelity  of  a  local  historian.  Modern  students  are  finding  historical  and 
sociological  materials  in  such  imaginative  writings  as  Plato's  Republic, 
More's  Utopia  and  Bacon's  Nova  Atlantis,  but  there  are  few  scholars 
who  have  thought  it  worth  while  to  utilize  the  wealth  of  fact  and  illustra- 
tion for  institutional  history  which  lies  at  our  very  doors.  Mr.  Johnson 
has  perhaps  taken  the  initiative  in  a  new  and  most  interesting  field, 
"Rudimentary  Society  among  Boys."  A  preliminary  study  upon  this 
general  subject  was  first  published  by  him  in  -the  Overland  Monthly  for 
October,  1883,  and  received  an  appreciative  notice  from  an  American 
psychologist  in  the  Notes  of  The  Nation,  January  17,  1884.  An  article 
on  "Judicial  Procedure  among  Boys"  was  also  published  in  the  Overland 
Monthly  for  July,  1884.  Mr.  Johnson's  work,  originally  prepared  for 
this  university  series,  has  now  been  entirely  recast  and  is  presented  in 
the  present  number  of  the  studies,  with  the  hope  that  it  may  suggest 
similar  investigations  elsewhere. 

The  editor  begs  leave  to  call  attention  to  the  sociological  and  institu- 
tional significance  of  this  monograph.  Upon  an  old  Maryland  plantation, 
itself  connected  historically  with  that  system  of  manorial  land-tenure 
which  supplanted  primitive  democracy  and  ancient  land  community, 
a  plantation  once  the  home  of  slaves  and  tenants,  who  did  the  bidding  of 
their  lord  and  master,  and  who  now  lie  buried  in  the  lord's  waste  land,  a 

1  [By  John  Hemsley  Johnson. 

Reprinted  (including  the  editorial  note  which  follows)  from  Johns  Hop- 
kins University  Studies  in  Historical  and  Political  Science  (1884),  Vol.  II, 
No.  XL] 

316 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  317 

fresh  and  juvenile  society  has  now  sprung  into  being.  Although  still 
under  the  authority  of  a  master  —  the  principal  of  McDonogh  school,  — 
the  boys  have  reverted  to  a  kind  of  primitive  democracy,  and  are  passing 
through  much  the  same  cycle  of  agrarian  history  as  that  through  which 
branches  of  the  great  Aryan  race  have  passed  again  and  again,  Jirst 
came  a  system  of  land  community  among  those  fifty  boys  inhabiting  the 
eight  hundred  acres,  remnant  of  that  old  plantation  of  three  thousand 
acres,  a  part  of  which  was  purchased  for  the  Institute  of  John  McDonogh, 
who  is  now  worshipped  as  the  eponymous  hero  of  the  McDonogh  clan 
of  small  boys.  He  is  the  tutelary  founder  of  that  school-boy  micropolis. 
While  the  principle  of  patriarchal  sovereignty  endures  in  the  headship 
of  the  school,  thfe  boys  still  represent  in  many  respects  the  survival  of 
primitive  democracy.  And  yet  chiefs,  or  elders,  arose  from  time  to  time 
among  the  McDonogh  boys  and  arrogated  to  themselves  by  reason  of 
their  superior  strength,  ago,  or  ability,  the  control  of  the  public  land  for 
hunting  and  fishing,  for  rabbit- trapping  and  bird-nesting.  Primitive 
democracy  is  now  in  danger  of  that  subversion  which  has  been  the  un- 
happy lot  of  the  small  farmers  in  England.  But  now  comes  a  socialistic 
party  once  niore  demanding,  so  to  speak,  the  communization  of  land. 
The  landholding  aristocracy  yield  very  slowly  and  urge  the  commoners 
to  accept  certain  distant,  as  it  were  colonial,  tracts  of  land  for  squirrel- 
hunting  and  rabbit-trapping.  Here,  in  miniature,  is  the  agrarian  history 
of  the  English  race  of  hunters,  trappers,  and  enterprising  colonists ;  nay, 
it  is  the  agrarian  history  of  our  Aryan  race.  Mr.  Johnson,  in  his  picture 
of  McDonogh  institute,  has  shown  us  a  microcosm,  not  only  of  the  agra- 
rian, but  of  the  political  and  economic  history  of  society. 

Boys  from  the  age  of  youth  to  adolescence  repeat  the  history  of  their 
ancestors  and  of  the  race  itself.  As  in  the  changes  of  the  egg,  every 
embryologist  recognizes  certain  rudimentary  features  of  structure  which 
disappear  before  birth,  so  the  sociologist  and  student  of  human  institu- 
tions may  discover  in  a  company  of  lads  not  only  the  rudiments  of  primi- 
tive society,  but  the  germs  of  its  development.  Every  school-boy  and 
college-student  in  his  upward  way  to  real  manhood  represents  the  evolu- 
tion of  a  primitive  savage  into  a  civilized  being.  Every  school  and 
college  reproduces  the  developmental  process  of  human  society  in  some 
of  its  most  interesting  aspects,  such  as  government  and  law.  There  are 
all  stages  of  social  development  in  the  student-class,  from  actual  savagery, 
which  frequently  crops  out  in  the  very  best  schools  and  colleges,  to  effemi- 
nate forms  of  modern  civilization.  There  are  all  degrees  of  institutional 
government,  from  total  anarchy  and  patriarchal  despotism  to  Roman 
imperialism  and  constitutional  government;  although  it  must  be  ad- 
mitted that  self-government  among  the  student-class  —  said  to  obtain 
in  some  American  schools  and  colleges  —  is  not  yet  a  chartered  right. 
The  regulation  of  student-society  by  itself,  or  by  the  powers  that  be, 
presents  all  phases  of  judicature,  from  the  most  savage  ordeals  to  the 
most  humane.  Student-customs  are  full  of  ancient  survivals,  and  some 
editions  of  "college  laws"  are  almost  as  archaic  as  the  code  of  Manu. 
One  of  these  days  we  shall  perhaps  find  men  investigating  college  juris- 
prudence, college  government,  and  college  politics  from  the  comparative 
point  of  view,  and  writing  the  natural  history  of  the  student-class. 

The  school  and  college  world  is  still  unexplored  by  scientific  discoveries  ; 
yet  how  fruitful  is  the  field  here  offered  to  the  sociologist  and  the  student 
of  comparative  politics !  Why  should  not  our  college  graduates  interest 
themselves  in  the  history  of  student  institutions?  While  at  college  we 
grappled  in  public  on  the  stage  with  such  great  questions  as  the  spirit 
of  English  liberty,  the  fallacies  of  Herbert  Spencer,  and  the  advantages 
of  free  trade ;  what  is  the  harm  in  undertaking  a  little  graduate  work  of 
a  more  microscopic  character?  Sir  John  Lubbock,  not  content  with 
writing  in  early  life  concerning  pre-historic  times  and  the  early  history 
of  civilization,  has  more  lately  studied  such  a  comparatively  insignificant 
theme  as  the  habits  and  instincts  of  ants.  Charles  Darwin  devoted 
a  considerable  part  of  his  life  to  the  study  of  earth  worms;  and  the 
germ  of  his  epoch-making  theory  may  be  found  in  his  study  of  the  birds 


318  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

and  reptiles  of  the  Galapagos  Islands.  Scientific  men  the  world  over, 
from  the  laboratory  of  Dohrn  at  Naples  to  that  of  Mitsukm-i  in  the 
University  of  Tokio,  are  pursuing  the  most  minute  objects  of  investiga- 
tion. The  infinitely  little  may  be  as  wonderful  as  the  infinitely  great; 
for  universal  truth  may  appear  in  atoms  as  well  as  in  systems  of  worlds. 
"After  such  great  matters  as  religion  and  politics,"  said  Bagehot,  "it 
may  seem  trifling  to  illustrate  the  subject  ['Nation-Making']  from  little 
-boys.  But  it  is  not  trifling.  The  bane  of  Philosophy  is  pomposity: 
people  will  not  see  that  small  things  are  the  miniatures  of  greater,  and 
it  seems  a  loss  of  abstract  dignity  to  freshen  their  minds  by  object-lessons 
from  what  they  know"  :   (Physics  and  Politics). 

The  world  already  possesses  a  pretty  large  stock  of*  great  principles, 
and  it  now  needs  fresh  collections  of  fact  in  order  to  prove  all  things  and 
hold  fast  that  which  is  good.  Aristotle  long  ago  said  that  "the  right 
method  of  investigating  anything  is  to  reduce  it  to  its  elements"  (Pol.  I. 
cap.  3).  He  began  his  great  treatise  on  politics  with  a  discussion  of  the 
primary  elements  of  the  State,  the  family  in  its  elementary  parts;  the 
village  community  composed  of  a  group  of  householders;  and  the  city 
or  commonwealth  formed  by  an  association  of  villages.  From  such 
elements  as  these,  not  only  political  science,  but  practical  politics  must 
be  perpetually  reconstructed.  The  Reverend  Samuel  W.  Dike  has  lately 
emphasized,  in  the  Princeton  Review  (March,  1884),  and  elsewhere,  the 
significant  idea  that  the  family,  oldest  of  institutions,  perpetually  repro- 
duces the  ethical  history  of  man,  and  continually  reconstructs  the  con- 
stitution of  society.  All  students  of  sociology  should  grasp  the  same 
radical  truth,  and  should  also  remember  that  school  and  college,  town 
and  city,  state  and  nation,  are  after  all  but  modified  types  of  family  in- 
stitutions, and  that  a  study  of  the  individual  elements  of  social  and  politi- 
cal life  is  a  true  method  of  advancing  sociology  and  politics  in  general. 
Johns  Hopkins  University, 
November  1,  1884. 

I.    Land  Tenure 

At  the  top  of  one  of  the  low,  fertile  hills  that  cover  much  of  the 
country  to  the  north  and  west  of  Baltimore,  stands  the  McDonogh 
School.  Around  it  stretch  the  eight  hundred  acres  of  the  school 
farm.  As  the  visitor  stands  upon  the  northern  portico  of  the 
principal's  house  and  looks  out  over  the  fields  of  corn,  wheat,  and 
clover,  whose  ample  breadths  fall  gradually  away  toward  the  water- 
course below,  his  eyes  find  relief  from  the  glancing,  undulating 
light  of  the  hot,  open  ground  in  the  dark,  quiet,  yet  various  green 
of  the  woods  that  crown  the  summer  hills.  On  the  high  eminence 
far  to  the  north-east  stands  the  Garrison  Forest  church,  whose 
foundation  goes  back  to  the  first  half  of  the  last  century,  when  the 
Reverend  Benedict  Bourdillon  suggested  the  building  of  a  ''  chapel 
of  ease  for  the  accommodation  of  the  forest  inhabitants."  A  few 
miles  to  the  eastward  is  the  small  stone  fort,  with  its  loop-holes 
for  muskets,  which  was  garrisoned  by  Captain  John  Risteau, 
High  Sheriff  of  the  county,  when  the  raids  of  the  fierce  Susque- 
hannoughs  kept  the  border  in  fear.  From  this  building  the  region 
takes  the  first  part  of  its  name  of  Garrison  Forest.  The  latter 
portion  is  accounted  for  by  the  great  abundance  of  woodland  yet 


Chap.    XI.]  RUDIMENTARY   SOCIETY  AMONG   BOYS  319 

uncleared,  which  is  only  a  remnant  of  the  unbroken  expanse  of 
trees  that  a  hundred  and  forty  years  ago  gave  the  surrounding 
district  the  name  of  the  Forest. 

To  the  south  of  the  school,  through  a  heavily  wooded  valley, 
flows  the  stream  called  the  Horsehead,  once  famous  for  its  trout, 
but  now  unfrequented  by  the  fish  by  reason  of  the  cultivation  of 
the .  land  along  its  upper  tributaries.  But  though  its  former 
reputation  has  departed,  the  ''  Forest  '^  still  grows  along  its  banks, 
from  which  not  all  the  game  has  yet  been  driven.  The  Elkridge 
hounds  can  still  find  a  fox  there  as  they  hunt  across  the  country ; 
flights  of  pigeons  still  feed  there  in  winter  upon  the  swamp  acorns ; 
raccoons  leave  the  sharp  imprint  of  their  claws  in  the  soft  mud 
along  the  stream;  musk-rats  scatter  the  mussel  shells  over  the 
shallows ;  and  the  opossums,  whose  tender  juicy  flesh  is  grateful 
to  the  bacon-eating  negroes,  are  still  caught  there  on  moonlit 
autumn  nights. 

Nor  is  Horsehead  wood  the  only  part  of  the  McDonogh  Farm 
where  animal  life  is  abundant;  other  pieces  of  woodland  being 
almost  equally  favored.  Red  and  gray  squirrels  abound  every- 
where in  the  trees,  and  in  September  these  spendthrifts  scatter 
bushels  of  partially  gnawed  hickory  nuts  upon  the  brown  and 
yellow  leaves.  Ground  squirrels  hurry  along  all  the  fences,  shrilly 
whistling  as  they  dive  into  their  dens.  In  the  stubble  fields  one 
cannot  go  far  without  putting  into  rapid  flight  before  him  a  snowy- 
tufted  "  cotton-tail."  An  indolent  ornithologist  of  the  neighbor- 
hood has  identified  one  hundred  and  thirty  species  without  ex- 
hausting the  resources  of  the  fields  and  woods. 

Over  these  teeming  eight  hundred  acres  the  "  McDonogh  boys  " 
roam  at  will,  each  according  to  his  ability  striving  to  become  a 
mighty  hunter  in  the  earth.  During  the  first  spring  after  the 
opening  of  the  school  the  boys  found  the  woods  abounding  with 
birds'  eggs  and  squirrels,  which  they  might  have  for  the  trouble 
of  taking.  -During  the  autumn  they  gathered  chestnuts  and 
walnuts  and  stored  them  away  to  be  cracked  and  eaten  before  the 
big  fire  in  the  school-room.  Whether  in  spring  or  in  autumn,  all 
who  went  to  the  labor  of  searching  were  rewarded  with  an  abun- 
dance. When  the  frost  had  killed  the  green  shoots  and  troubled 
the  rabbits  to  get  a  living,  every  boy  that  chose  to  do  so  set  traps 
in  the  swamps  and  ditches,  and  baited  them  with  sweet-smelling 
apples,  or  more  pungent  and  effective  onions. 

The  ground  was  then  regarded  as  the  property  of  the  com- 
munity, and  while,  like  the  ancient  Teutonic  villager,  each  "  Me- 


320  FACTORS    OF   LEGAL   EVOLUTION  [Part   II. 

Donogh  boy  "  took  pains  to  exclude  strangers  from  the  Mark, 
each  regarded  himself  with  the  rest  as  a  joint  owner  of  the  harvest 
of  nuts,  and  all  had  equal  rights  of  hunting  and  trapping  in  the 
waste.  As  in  the  precursors  of  those  Aryan  villages  of  the  east, 
recently  studied  by  Phear,  "  land  was  not  conceived  of  as  property 
in  the  modern  sense,  or  as  belonging  to  any  individual."  ^  The 
whole  was  common  to  them  all,  and  every  boy  had  a  right  to  a 
portion  of  the  fruits  of  the  ground. 

This  idea  of  common  property,  if  not  the  same  as,  is  quite  like, 
that  which  has  prevailed  in  many  primitive  conmunities,  "  in 
Germany  and  ancient  Italy,  in  Peru  and  China,  in  Mexico  and 
India,  among  the  Scandinavians  and  the  Arabs."  ^  Among  the 
"  McDonogh  boys",  as  among  many  savage  societies,  the  begin- 
ning of  property  in  land  is  seen  as  "  the  collective  ownership  of  the 
soil  by  groups  of  persons."  ^  I  had  almost  continued  the  quota- 
tion to  make  it  include  the  words,  "  groups  believing  or  assuming 
that  they  are  "  united  in  blood  relationship.  But  while  such  a 
statement  here  would  be  untrue,  the  feeling  of  union  among  the 
*'  McDonogh  boys  "  is  of  a  very  striking  intensity.  They  become 
greatly  indignant,  and  even  have  a  sense  of  wrong  done  them  when 
they  discover  a  youngster  from  the  neighborhood  trapping  game 
upon  "  our  farm."  This  sentiment  they  have  sometimes  mani- 
fested in  attempts  to  prevent  the  children  of  the  men  employed 
on  the  farm  from  gathering  eggs  in  the  woods;  and  the  school- 
boys regard  their  few  competitors  in  hunting  with  an  aversion 
often  put  into  words  and  sometimes  into  acts. 

This  esprit  du  corps  is  perhaps  the  counterpart  of  the  feeling 
that  formed  the  bond  of  union  in  primitive  societies.  At  the 
present  day,  among  the  members  of  the  Hindoo  joint  undivided 
family,  as  well  as  among  the  villagers  in  the  Russian  Mir,  it  as- 
sumes the  form  of  a  belief  in  their  descent  from  a  common  ancestor."* 
In  other  groups  it  took  other  forms,  varying  with  the  condition  of 
the  society  in  which  it  existed,  often  getting  far  away  from  its 
original  form  —  that  of  a  feeling  of  blood  relationship.  Thus 
among  the  Romans,  ''  the  stranger  who  had  been  adopted  .  .  . 
became  the  agnate  of  the  one  adopting  him,  and  even  of  the  whole 
family."  ^  This  feeling  of  brotherhood  is  so  deep  and  lasting  that, 
similarly,  it  might  be  said  of  the  ''  new  boy",  on  his  admission 

1  Sir  /.  B.  Phear,  ''The  Aryan  Village  in  India  and  Ceylon",  p.  236. 

2  De  Laveleye,  "Primitive  Property",  p.  2. 

3  Maine,  "Early  History  of  Institutions",  p.  1. 

4  Maine,  "Early  History  of  Institutions",  p.  7. 

5  Fustel  de  Coulanges,  "The  Ancient  City",  p.  75, 


Chap.    XI.]  RUDIMENTARY   SOCIETY  AMONG   BOYS  321 

into  the  ]\IcDonogh  School,  "  in  sacra  transiit."  The  feeling  of 
the  boys  is  well  shown  in  their  conception  of  their  rights  to  the 
property  of  the  school,  many  of  them  regarding  themselves  as 
the  legatees  of  John  iMcDonogh,  the  philanthropist  who  gave  his 
fortune  to  Baltimore  in  trust  for  the  education  of  poor  boys.  He 
fills  the  niche  once  occupied  in  the  minds  of  their  Aryan  progeni- 
tors by  the  common  ancestor,  from  whom  all  the  members  of  the 
primitive  community  thought  themselves  to  have  sprung.  For 
the  primitive  fiction  of  common  descent  they  have  substituted  the 
real  bond  of  school  fellowship  and  the  pretended  bond  of  succes- 
sion. As  they  sometimes  express  it,  "  McDonogh  left  his  property 
to  us  " ;  and  the  idea  that  any  other  than  "  McDonogh  boys  " 
have  any  rights  over  the  property,  they  do  not  easily  accept. 
This  feeling  is  clearly  displayed  in  their  attitude  toward  one  of  the 
rules  of  the  school.  They  are  not  permitted  to  pluck  the  fruit  in 
the  orchards,  and  some  of  them  are  honestly  unable  to  see  the 
justice  of  such  a  regulation.  The  fact  that  the  fruit  is  given  to 
them  after  it  is  gathered  does  not  at  all  satisfy  them.  Con- 
scientious boys  have  often  said  in  my  hearing  that,  as  they  owned 
the  fruit,  no  one  had  a  right  to  prevent  them  from  pulling  it. 
They  are,  however,  debarred  from  carrying  this  idea  into  practice, 
and  the  truth  has  often  been  pointed  out  to  them ;  so  this  notion 
is  not  universal  among  them.  But  as  no  one  has  interfered  to 
dispel  their  belief  that  they  have  property  in  the  nuts,  eggs,  and 
squirrels,  they  have  made  this  a  cardinal  doctrine  of  their  politics. 

With  this  feeling  of  ownership  constantly  in  mind,  the  boys 
that  entered  the  school  at  its  opening  went  peering  through  the 
high  grass  of  the  meadows  in  search  of  bobolink's  eggs;  and 
climbed  the  rough  pin-oaks  to  the  nests  of  the  hawks.  The  first 
score  of  urchins  were  able  to  get  as  much  as  they  desired  from  the 
fields  and  w^oods;  but  when  the  school  grew  in  numbers,  and 
fifty  adventurers  had  boxes  of  bran  to  be  filled  with  oological 
specimens,  and  bins  holding  each  ten  bushels  to  be  stored  with 
walnuts,  the  demand  for  these  treasures  began  to  exceed  the  supply. 
Then  competition  set  in  and  disputes  arose,  out  of  which,  with  the 
aid  of  an  apparent  instinct  for  politics,  the  boys  were  able  to 
bring  custom  and  law,  and  a  system  of  property  which  was  odd 
and  unexpected,  yet  orderly  and  intelligible. 

Sir  Henry  jMaine  has  said  that  among  primitive  Teutonic  races 
the  proprietary  equality  of  the  families  composing  the  land-own- 
ing group  was  at  first  secured  by  a  periodical  re-distribution  of 
the  land.     This  custom  he  considers  as  marking  an  important 


322  FACTORS    OF   LEGAL   EVOLUTION  [Part  II. 

stage  in  the  transition  from  collective  to  individual  propert}^, 
and  so  wide-spread  does  he  believe  it  to  have  been  that  to  him, 
"  there  appears  to  be  no  country  inhabited  by  an  Aryan  race  in 
which  traces  do  not  remain  of  the  ancient  periodical  re-distribu- 
tion. It  has  continued  to  our  own  day  in  the  Russian  villages. 
Among  the  Hindoo  villagers  there  are  widely  extending  traditions 
of  the  practice,  and  it  was  doubtless  the  source  of  certain  usages", 
surviving  to  our  own  day  in  England  and  Germany.^ 

The  stage  of  economic  development  in  which  re-distribution  of 
the  common  land  is  practiced  is  the  stage  which  the  "  McDonogh 
boys  "  have  reached  in  their  evolution  of  the  conception  of  owner- 
ship of  the  walnut  crop.  To  understand  their  position  in  the  line 
of  progress,  however,  we  must  first  see  how  they  now  gather  the 
crop,  and  how  they  formerly  harvested  it.  Just  after  midnight 
some  morning  early  in  October,  when  the  first  frosts  of  the  season 
have  loosened  the  grasp  of  the  nuts  upon  the  limbs,  parties  of  two 
or  three  boys  might  be  seen  (if  any  one  were  sufficiently  interested 
to  leave  his  bed  at  such  an  untimely  hour)  rushing  at  full  speed 
over  the  wet  fields.  When  the  swiftest  party  has  reached  a  walnut 
tree,  one  of  the  number  climbs  up  rapidly,  shakes  off  half  a  bushel 
of  the  nuts  and  scrambles  down  again.  Then  off  the  boys  go  to 
the  next  tree,  where  the  process  is  repeated  unless  the  tree  is  oc- 
cupied by  other  boys  doing  likewise.  This  activity  continues 
during  play-hours  until  all  the  walnut  trees  on  the  place  have 
been  appropriated.  Nut-hunters  coming  to  the  tree  after  the  first 
party  has  been  there,  and  wishing  to  shake  the  tree  still  further, 
are  required  by  custom  to  pile  up  all  the  nuts  that  lie  under  the 
tree.  Until  this  is  done  the  unwritten  law  does  not  permit  their 
shaking  any  more  nuts  upon  the  ground.  Any  one  that  violated 
this  provision  and  shook  the  nuts  from  a  tree  before  piling  up  those 
beneath,  would  be  universally  regarded  as  dishonest,  and  every 
boy's  hand  would  be  against  him.  To  collect  all  these  nuts  into 
a  pile  requires  no  small  labor,  and  rather  than  undergo  this  the 
second  party  will  usually  go  off  in  search  of  another  tree.  Con- 
sequently the  partial  shaking  commonly  enables  the  boy  that 
first  climbs  a  tree  to  get  possession  of  all  its  fruit. 

A  certain  justice  underlies  this  custom.  Labor  has  been  ex- 
pended in  the  first  shaking.  If  another  comes  and  shakes  more 
nuts  to  the  ground  before  picking  up  those  already  there,  the 
fruit  of  the  first  boy's  labor  will  be  mixed  with  that  of  the  second, 
and  thus  the  first  comer  will  lose  some  of  his  work.  The  moral 
^  Maine,  "Village  Communities",  p.  82. 


Chap.    XI.]  RUDIMENTARY   SOCIETY  AMONG   BOYS  323 

sense  of  the  community  agrees  that  no  part  of  the  labor  shall  be 
lost  to  him  that  performs  it,  and  to  prevent  such  a  result  the 
present  regulation  seems  effectual.  In  what  notions,  ethical  or 
other,  this  practice  of  seizing  trees  was  begun,  we  cannot  now  dis- 
cover; but  all  analogies  indicate  that  the  justice  of  the  matter 
was  not  the  sole  consideration.  But  if  it  is  hard  to  discover  the 
origin  of  this  custom  in  the  moral  nature  of  the  boys,  we  may  yet 
see  how  it  illustrates  their  views  of  property.  Inasmuch  as  a  tree 
is  the  property  of  a  boy  and  his  partners  only  so  long  as  his  nuts 
remain  unpiled  on  the  ground ;  and  since  the  trees  may  be  shaken 
again  by  any  boy  who  chooses  to  pile  up  the  nuts :  it  is  evident 
that  in  the  eyes  of  the  boys  the  trees  belong  to  all  of  them.  The 
simple  expedient  for  re-distributing  the  trees  at  intervals  of  a 
year  is  to  cause  all  titles  to  expire  at  the  end  of  the  harvest.  A 
boy's  right  to  a  tree  lasts  no  longer  than  a  single  autumn.  If 
in  all  that  time  he  does  not  remove  his  crop,  and  if  no  one  else 
piles  up  the  nuts  a,nd  gathers  the  rest  of  the  yield,  still  his  right 
expires  by  limitation ;  and  at  the  opening  of  the  next  season  the 
first  comer  has  a  right  to  establish  a  title  for  himself. 

It  may  be  said  that  permitting  each  boy  to  seize  such  trees 
as  he  can,  is  hardly  to  be  called  an  equitable  method  of  re-dis- 
tribution, but,  as  I  desire  to  establish  only  the  fact  of  re-distribu- 
tion, this  is  not  a  valid  objection.  It  is,  however,  true  that  efforts 
have  been  made  looking  toward  a  fair  division.  The  keen  com- 
petition for  walnuts  led  many  boys  to  shake  trees  in  the  middle 
of  September,  and  thus  to  acquire  a  title  to  them  long  before  the 
fruit  was  ripe.  When  baseball  was  still  the  main  idea  of  the  ma- 
jority, perhaps  a  fortnight  before  the  first  frost  (everywhere  rec- 
ognized as  marking  the  ripening  of  the  crop),  the  greediest  or  the 
most  enterprising  boys  would  set  out  to  seize  and  shake  as  many 
trees  as  possible.  Having  no  competitors  they  would  be  able  in 
a  few  days  to  take  possession  of  a  whole  crop  of  nuts.  To  alle- 
viate this  evil  a  day  in  October  was  fixed  as  the  date  of  the  be- 
ginning of  harvest.  An  assembly  of  the  boys,  where  all  may  take 
part,  is  the  body  which  determined  and  still  determines  the  open- 
ing of  the  season.  The  meaning  of  this  public  act  is  evident.  It 
was  felt  that  the  few  had  seized  what  the  many  owned,  and  to 
prevent  the  recurrence  of  this  robbery  it  was  made  unlawful 
to  gather  any  part  of  the  crop  before  all  knew  it  was  ripe.  By 
fixing  a  day  when  the  harvest  should  begin,  the  boys  did  what  they 
could  toward  equalizing  the  shares  of  each.  They  at  least  put  all 
upon  the  same  footing  as  regards  the  time  of  gathering,  and  they 


324  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

made  each  boy  know  when  he  must  enter  upon  the  competition. 
Though  not  all  the  starters  could  have  the  inside  track,  all  got 
away  together. 

The  idea  of  common  ownership  shown  in  this  regulation  is 
apparently  the  same  as  that  which  led  to  those  periodical  re- 
distributions of  the  land,  of  which,  according  to  Maine,  traces 
are  found  in  all  countries  inhabited  by  people  of  Aryan  descent. 
When  the  Russian  Mir  makes  an  allotment  of  arable  land  to  each 
household  proportioned  to  the  number  of  its  members,  and  fixes 
the  date  of  the  harvest ;  when  the  Dutch  Haagespraak,  or  village 
assembly,  fixes  the  day  on  which  the  horn  shall  blow  to  mark  the 
time  for  cutting  the  corn  on  the  village  land,^  the  object  is  the  same 
as  that  of  the  assembly  at  McDonogh.-  Equality  in  the  shares 
of  the  fruit  of  the  common  domain  is  the  desired  result.  In  the 
adult  communities  the  body  making  the  re-distribution  is  well 
organized,  and  in  arable  land  equal  shares  can  be  easily  laid  off; 
while  among  the  boys  their  political  machinery  is  imperfect,  and 
the  walnut  trees  are  too  far  apart  and  too  irregular  in  value  to 
permit  a  fair  division.  The  differences,  however,  seem  to  be 
differences  of  degree  only. 

While  the  community  thus  does  what  it  can  to  give  each  member 
a  fair  chance,  no  effort  has  been  made  to  equalize  the  industry  of 
the  competitors.  The  hardest  workers  still  gather  the  biggest 
crop.  The  day  for  the  opening  of  harvest  is  reckoned  to  begin 
at  midnight,  and  the  boys  that  are  most  in  earnest  stay  awake 
till  twelve,  and  then,  issuing  from  their  beds  into  the  chilly  moon- 
light of  the  October  fields,  they  seize  such  trees  as  they  desire. 

The  same  feeling  of  common  ownership  of  the  woodland  and 
the  same  attempt  at  re-distribution,  which  appear  in  the  custom 
of  gathering  the  walnut  crop,  are  apparent  in  the  usages  of  the 
school  on  the  subjects  of  egg-gathering  and  squirrel-hunting.  As 
eggs  grew  scarce  and  the  boys  grew  numerous,  those  who  most 
desired  the  eggs  worked  hardest  to  get  them,  climbing  higher 
trees  and  wading  through  muddier  swamps.  As  the  more  in- 
dustrious boys  saw  the  birds  building  nests  over  their  heads, 
what  was  more  natural  than  a  desire  to  possess  them  before  the 
laying  began,  and  thus  to  acquire  a  title  to  the  eggs  ?  A  boy  who 
had  spent  hours  in  a  weary  search  and  had  at  last  found  a  nest, 
felt  that  his  labor  gave  him  a  right  to  it.  Accordingly  some  boys 
began  to  invent  ways  of  marking  the  trees  in  which  they  had  found 

1  De  Laveleye,  "Primitive  Property",  p.  285 ;  Wallace,  "Russia",  Vol.  I, 
p.  208. 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  325 

nests,  and  to  claim  ownership,  not  of  the  eggs,  which  were  not  then 
laid,  but  of  the  tree  in  which  they  knew  the  eggs  would  soon  be 
brought  forth.  Commonly  when  a  boy  found  a  nest,  he  laid  a 
dead  limb  against  the  trunk  as  a  warning  to  others  that  the  tree 
had  become  his,  and  was  no  longer  common  property,  to  be  taken 
by  any  one  passing  by.  Rights  thus  acquired  were  not  always 
respected  by  the  covetous,  and  eggs  were  so  often  taken  from 
marked  nests  as  to  lead  to  an  intolerable  condition  of  quarreling 
and  fighting.  The  community  then  interfered  to  regulate  the  use 
of  the  Mark.  After  much  angry  discussion  the  assembly  adopted 
the  plan  of  nailing  upon  the  trees  a  ticket  bearing  the  finder's 
name  and  the  date  of  the  discovery.  This  ticket  gave  to  the  boy 
whose  name  it  bore  a  right  of  property  during  the  rest  of  that 
year  to  all  the  nests  that  might  be  made  in  that  tree  and  to  all 
their  contents.  On  the  last  day  of  December  all  titles  were  to 
lapse,  to  be  renewed  only  by  the  new  ticket. 

Before  the  first  bluebird  has  laid  her  pale  azure  eggs  in  the 
leafless  orchards,  the  egg-hunters,  in  conformity  with  this  statute, 
provide  themselves  with  strips  of  paper  bearing  their  name  and 
the  date,  thus : 


Miller  &  Crook, 

1884. 


These  tickets  and  some  tacks  they  take  with  them  whenever 
they  go  into  the  woods.  Where  a  hollow  limb  presages  the  birth 
of  a  brood  of  squirrels,  one  of  these  labels  is  nailed  upon  the  trunk 
beneath,  and  another  is  placed  under  every  crow's  nest  building 
in  the  branches.  During  the  year  1884  no  other  honest  boy  will 
take  eggs  or  squirrels,  from  a  tree  thus  appropriated,  and  Masters 
Miller  and  Crook  may  go  at  leisure  and  collect  the  new  laid  speci- 
mens for  their  cabinets  or  the  weak-eyed  pets  for  their  pockets. 
In  the  immediate  neighborhood  of  the  schoolhouse  little  boxes 
are  placed  for  the  birds  to  build  in,  and  serve  the  double  purpose 
of  insuring  the  making  of  a  nest  and  of  marking  it  as  private 
property.  When  a  boy  has  put  into  a  tree  one  of  these  traps  for 
unsuspecting  maternity,  no  other  boy  is  permitted  to  use  the  tree 
for  the  same  purpose.  A  case  lately  occurred  where,  amid  general 
approbation,  the  second  box  was  destroyed  by  the  owner  of  the 
first.  The  boys  regret  that  the  official  discountenance  prevents 
the  full  development  of  this  interesting  custom. 


326  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

In  placing  his  tickets  a  boy  is  at  liberty  to  use  his  discretion  as 
to  time  and  place,  and  he  may  put  up  as  many  of  them  as  he  likes 
even  before  the  snow  has  melted.  Often  of  course  the  tickets  are 
liberally  distributed  in  promising  parts  of  the  woods  as  early  as 
February,  and  thus  an  energetic  fellow  obtains  possession  of  scores 
of  trees.  The  likeness  here  to  the  custom  of  seizing  the  walnuts 
is  evident.  The  day  for  the  opening  of  the  season,  January  1, 
has,  however,  been  fixed  once  for  all,  while  the  date  of  the  begin- 
ning of  the  walnut  harvest  is  a  matter  for  yearly  consideration. 
The  two  usages  differ  in  one  other  point  also.  A  boy's  title  to  a 
walnut  tree  that  he  has  shaken  is  valid  only  until  some  one  has 
piled  up  his  nuts;  after  that  is  done,  any  one  may  take  the  rest 
of  the  fruit  of  the  tree.  But  the  right  to  a  tree  marked  with  a 
ticket  is  good  for  the  rest  of  the  year,  if  the  ticket  is  not  blown 
down  and  out  of  sight.  Hence,  if  we  regard  the  woods  as  land 
devoted  to  the  production  of  squirrels  and  eggs,  we  may  say  that 
a  boy  marking  a  tree  has  obtained  a  share  of  this  land  for  a  year 
in  severalty.  At  the  end  of  that  time  the  woodland  again  becomes 
common  and  there  is  a  distribution  by  seizure. 

This  usage  closely  resembles  the  custom  of  temporary  owner- 
ship in  vogue  in  the  Russian  Mir.^  M.  de  Laveleye  has  de- 
scribed in  these  words  the  same  practice  as  it  appears  among  many 
primitive  peoples.  "  The  cultivated  land  is  divided  into  parcels 
which  are  distributed  by  lot  among  the  several  families,  a  mere 
temporary  occupation  being  thus  allowed  to  the  individual.     The 

1  The  following  description  of  the  distribution  of  common  land  in  the 
Russian  Mir  is  taken  from  Wallace,  "Russia",  Vol.  I,  p.  207.  14:  serves  as 
a  living  example  of  the  resemblance  between  the  customs  of  McDonogh 
and  those  of  primitive  society.  "The  whole  of  the  communal  arable 
land  is  first  of  all  divided  into  three  fields,  to  suit  the  triennial  rotation 
of  the  crops  already  described,  and  each  field  is  divided  into  a  number 
of  long,  narrow  strips  —  corresponding  to  the  number  of  male  members  in 
the  commune  —  as  nearly  as  possible  equal  to  each  other  in  area  and 
quality.  Sometimes  it  is  necessary  to  divide  a  field  into  several  por- 
tions, according  to  the  quality  of  the  soil,  and  then  to  subdivide  each  of 
these  portions  into  the  requisite  number  of  strips.  Thus  in  all  cases 
every  household  possesses  a  strip  in  each  field ;  and  in  those  cases  where 
subdivision  is  necessary,  6very  householder  possesses  a  strip  in  each  of 
the  portions  into  which  the  field  is  subdivided.  This  complicated  proc- 
ess of  division  and  subdivision  is  accomplished  by  the  peasants  them- 
selves, with  the  aid  of  simple  measuring  rods,  and  the  accuracy  of  the 
result  is  truly  marvelous. 

"The  meadow,  which  is  reserved  for  the  production  of  hay,  is  divided 
into  the  same  number  of  shares  as  the  arable  land.  There,  however,  the 
division  and  distribution  take  place,  not  at  irregular  intervals,  but  annu- 
ally. Every  year,  on  a  day  fixed  by  the  assembly,  the  villagers  proceed 
in  a  body  to  this  part  of  their  property  and  divide  it  into  the  requisite 
number  of  portions.  Lots  are  then  cast,  and  each  family  at  once  mows 
the  portion  allotted  to  it." 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  327 

soil  still  remains  the  collective  property  of  the  clan,  to  whom  it 
returns  from  time  to  time  that  a  new  partition  may  be  effected. 
This  is  the  system  still  in  force  in  the  Russian  commune  and  was, 
in  the  time  of  Tacitus,  that  of  the  German  tribe."  ^ 

Beside  this  temporary  ownership  of  trees,  permanent  individual 
property  in  land  frequented  by  rabbits  has  been  developed.  The 
process  of  development  is  somewhat  similar  to  that  which  has  been 
offered  by  several  writers  as  an  explanation  of  the  growth  of  in- 
dividual ownership  among  men.  We  can  see  clearly  the  suc- 
cessive stages  of  common  landholding;  of  temporary  individual 
ownership ;  of  permanent  individual  ownership ;  of  land  monop- 
oly ;  and  last  of  all,  the  rise  of  a  socialistic  party  clamoring  for  a 
re-distribution  of  land. 

When  the  explorations  of  the  boys  revealed  the  presence  of 
nuts,  eggs,  and  squirrels,  numbers  of  rabbits  were  also  discovered. 
Attempts  were  at  once  made  upon  the  lives  of  these  animals,  for 
the  purpose  of  adding  a  delicacy  to  the  commonplace  round  of 
boarding-school  fare.  Every  boy  that  chose  to  do  so,  made  traps 
and  set  them  at  such  spots  as  struck  his  fancy,  for  at  the  start  the 
equal  rights  of  all  to  the  woods  and  game  were  fully  recognized. 
But  ownership  in  severalty  was  soon  established  on  the  ruins  of 
the  system  of  common  property. 

Clearly  to  understand  this  economic  revolution,  we  must  con- 
sider it  historically.  The  rabbit  trapping  season  begins  about 
the  middle  of  October  and  ends  early  in  December.  Its  opening 
depends  upon  the  weather,  and  not  like  the  walnut  harvest,  upon 
the  legislation  of  the  boys.  If  there  is  an  early  autumn,  the  rabbits 
may  be  induced  by  the  scarcity  of  food  to  enter  the  traps  sooner 
than  if  the  warm  weather  continues  till  late. 

In  the  first  autumn  after  the  opening  of  the  school,  each  boy 
that  chose  to  do  so,  made  a  box  of  planks,  fitted  one  end  with  a 
door  that  would  fall  at  the  touch  of  a  trigger,  and  having  found  a 
promising  spot,  there  set  his  trap.  The  hungry  rabbits  were 
tempted  with  fragrant  apples  and  appetizing  onions,  and  a  few 
victims  were  enticed  within  the  fatal  door.  At  that  time  no  boy 
set  more  than  half  a  dozen  traps,  and  almost  the  whole  school 
enjoyed  the  delightful  anticipation  of  having  rabbit  for  break- 
fast on  some  future  morning. 

But  the  spots  where  rabbits  can  be  caught  on  eight  hundred 
acres  are  comparatively  few,  and  hence  the  closeness  of  the  traps 
interfered  with  the  amount  of  the  catch.  It  is  a  habit  with  rabbits 
'  De  Laveleye,  "Primitive  Property",  p.  4. 


328  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

to  move  about  in  well-marked  paths,  and  the  boys  usually  set  their 
traps  in  these  places.  Generally  a  rabbit  will  enter  the  first  trap 
in  his  path,  and  boys  often  complained  that  their  traps  were 
rendered  useless  by  the  proximity  of  others.  After  a  year  or  two 
of  this  unsatisfactory  state  of  affairs,  a  large  boy,  who  had  set  his 
traps  rather  earlier  than  the  rest,  began  dropping  heavy  stones 
upon  all  traps  set  closer  to  his  own  than  he  thought  desirable. 
In  such  a  society  as  we  are  studying,  a  hard-fisted  fellow  of  fifteen 
is  a  great  personage,  and  has  much  the  same  influence  as  a  great 
warrior  in  a  primitive  village.  The  example  of  this  boy-magnate 
was  imitated  by  all  who  dared ;  and  by  common  consent,  or  per- 
haps by  common  submission,  a  limited  distance  between  traps 
was  agreed  on.  Within  a  circle  about  forty  yards  in  diameter, 
drawn  about  a  trap  already  set  as  a  centre,  no  other  trap  was  to 
be  placed.  For  the  season  the  owner  of  the  trap  first  placed  on 
any  given  piece  of  ground  either  assumed  or  was  entrusted  with 
authority  to  break  any  trap  placed  within  the  specified  distance 
of  his  own.  Thus  all  persons  were  prevented  from  trapping  in 
the  protected  spots. 

Here  we  come  upon  another  case  of  temporary  individual 
ownership.  If  there  was  any  serious  opposition  to  it  in  the  be- 
ginning, tradition  has  preserved  no  account  of  it.  As  the  rights 
thus  acquired  lasted  only  for  a  year,  each  boy  felt  that  next  year 
he  would  have  a  chance  to  set  traps  in  the  appropriated  spots, 
and  to  obtain  sole  ownership  for  himself.  Cupidity  moved  those 
not  moved  by  fear  to  consent  to  the  scheme  of  the  innovators. 
As  the  result  proves,  such  compliance  was  highly  injudicious.  We 
have  already  seen  how  the  custom  of  seizing  trees  became  the 
means  whereby  some  boys  were  able  to  get  possession  of  more  than 
a  fair  share  of  the  walnut  crop.  A  like  selfishness  was  not  absent 
from  the  breasts  of  the  trappers.  Some  grasping  spirits  among 
them,  dissatisfied  with  their  nearly  equal  shares  of  ''rabbit  land", 
desired  a  greater  catch  than  was  made  by  the  rest.  Accordingly, 
a  few  of  these  "  pushing  young  particles  "  combined,  or  rather 
conspired,  in  early  autumn  to  make  fifty  traps  and  set  them  at 
intervals  over  a  valuable  rabbit  district.  The  customary  law  did 
not  permit  a  trap  to  be  placed  near  one  already  set,  and  conse- 
quently, when  the  next  party  of  trappers  went  to  the  place,  they 
found  it  already  occupied.  It  was  dotted  with  traps.  The 
ground  around  each  belonged  to  the  owner  of  the  trap,  and  each 
trap  was  set  so  close  to  the  succeeding  one  that  another  could  not 
lawfully  be  put  between  them.     The  woods  thus  filled  with  traps 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  o29 

became  for  the  season  the  property  of  the  greedy  fellows  who  had 
contrived  the  plan  of  overreaching  their  schoolmates.  The  fact 
that  they  had  gained  possession  by  a  trick  did  not  in  their  own 
eyes  invalidate  their  title.  The  law  had  been  literally  complied 
with,  and  the  victims  had  no  remedy  but  force.  But  as  the 
monopolists  were  big  and  united,  the  force  was  all  on  their  side, 
and  they  easily  overawed  their  plundered  rivals. 

Thus  temporary  individual  ownership  of  the  soil  came  to  be 
permitted  and  to  be  abused  at  McDonogh.  It  was  to  prevent 
the  latter  result  in  the  village  communities  described  by  Maine 
that  a  periodical  re-distribution  of  land  was  instituted.  Such  a 
custom,  to  give  additional  examples,  was  followed  in  the  ancient 
Teutonic  villages,  among  the  Hindoos,  and  among  the  Dutch; 
and  as  there  was  a  system  of  re-distribution  of  the  trees,  so  there 
was  theoretically  a  re-distribution  of  the  "  rabbit  land."  Just 
as  the  right  to  a  marked  tree  ceased  at  the  end  of  the  year  during 
which  the  label  was  put  up,  so  the  right  to  land  covered  with  traps 
expired  at  the  close  of  the  season.  But  while  paper  labels  are 
perishable  things,  unlikely  to  remain  on  the  tree  during  the  winter, 
the  heavy  wooden  boxes  used  as  rabbit  traps  will  continue  in  good 
condition  for  years  in  the  same  spot.  Hence,  a  trap  placed  in  a 
good  situation  gave  its  owner  a  great  advantage  the  next  year 
in  renewing  his  claim.  By  re-setting  his  old  trap  he  again  became 
proprietor  of  the  ground,  and  he  could  re-set  it  much  more  easily 
than  another  boy  could  bring  a  trap  there  and  displace  him.  It 
was  the  old  story  of  the  odds  on  the  side  of  capital.  When 
trapping  was  over  for  the  autumn  in  which  these  events  occurred, 
the  monopolists  left  their  traps  upon  the  spots  where  they  had 
been  set,  and  the  following  autumn  the  same  boys  had  merely  to 
walk  leisurely  over  the  ground  and  set  them  once  more.  Thus  it 
was  easy  for  these  boys  to  be  the  first  in  the  field  and  again  prevent 
othei-s  from  trapping  in  the  best  places.  When  this  occurred 
most  of  the  other  boys  ceased  to  compete  with  these  rapacious 
squatters.  Some  who  persisted  had  to  be  content  with  spots  so 
poor  in  game  that  they  had  not  excited  the  cupidity  of  the  monopo- 
lists. By  this  process,  continued  from  year  to  year,  the  land  fell 
into  the  hands  of  a  few.  The  old  system  of  common  enjoyment 
disappeared,  and,  in  its  place,  came  permanent  individual  property. 

When  the  custom  of  private  property  in  land  had  been  in  force 
for  several  years,  a  new  industry  was  introduced  at  IMcDonogh. 
Three  boys  learned  how  to  trap  musk-rats,  and  engaged  in  the 
enterprise  so  assiduously  that  in  a  few  weeks  they  had  snares  set 


330  FACTORS  OF  LEGAL  EVOLUTION  [Part  II. 

at  short  intervals  for  a  mile  along  the  principal  stream  flowing 
through  the  school  farm.  Their  success  induced  three  others  to 
make  the  same  venture.  It  was  then  agreed  by  the  two  parties 
to  divide  the  stream  between  them,  the  last  comers  trapping  only 
along  that  part  of  the  banks  where  the  first  made  no  lodgment ; 
and  it  was  further  agreed  to  support  each  other  in  maintaining 
exclusive  rights  to  the  banks.  Thus  six  boys,  who  were  among  the 
largest  in  the  school,  and  three  of  whom  already  owned  large 
tracts  of  "  rabbit  land",  were  enabled  to  seize  upon  a  franchise 
to  which  all  the  other  scholars  had  an  equal  claim.  No  attempt 
was  made  to  resist  them  and  their  ownership  of  the  banks  remained 
undisputed. 

'  If  we  attempt  to  account  for  the  last  developments  of  the  customs 
we  are  studying,  our  task  becomes  easy  enough.  Whatever  may 
have  been  the  origin  elsewhere  of  inequality  of  landed  property, 
it  is  clear  that  at  McDonogh  its  source  was  the  selfishness  of  the 
strong.  The  fact  that  in  Herbert  Spencer's  words  these  boys  had 
"  like  claims  to  pursue  the  objects  of  their  desires  " ;  that  their 
world  was  "  adapted  to  the  gratification  of  those  desires  "  ;  that 
they  were  similarly  brought  into  their  world  and  the  consequent 
fact  that  they  had  "  equal  rights  to  the  use  of  this  world  ",  —  these 
facts  did  not  in  the  least  interfere  with  the  satisfaction  with  which 
the  monopolizing  landowners  ate  the  rabbits  that  rewarded  their 
iniquitous  industry.  On  the  contrary,  they  proceeded,  with  no 
qualms  of  conscience,  to  develop  to  the  utmost  their  new  powers 
of  ownership. 

In  the  usual  cpurse  of  progress  we  should  expect  rights  of  devise 
to  follow  the  appearance  of  rights  of  private  ownership.  "  Origi- 
nally," says  M.  de  Laveleye,  "  testamentary  disposition  was  com- 
pletely unknown;  primitive  nations  did  not  understand  how  the 
mere  wish  of  an  individual,  taking  effect  after  his  death,  could 
decide  the  ownership  of  property  .  .  ."  ^  The  opposition  to  the 
right  of  devise  has  in  almost  all  cases,  however,  yielded  to  other 
considerations,  and  wills  have  been  permitted.  Thus,  among  the 
ancient  Irish,  the  influence  of  the  church  was  paramount  in 
disputes  over  the  validity  of  devises.  In  Lower  Bengal,  after  the 
break-up  of  the  village  system,  wifls  were  successfully  introduced 
through  the  influence  of  English  law.^  In  like  manner,  after  the 
establishment  of  individual  property  at  McDonogh,  testamentary 

1  De  Laveleye,  "Primitive  Property",  p.  178. 

2  Maine,  "Village  Communities",  p.  40;  "Early  History  of  Institu- 
tions", p.  56. 


Chap.    XI.]  RUDIMENTARY   SOCIETY  AMONG   BOYS  331 

rights  were  firmly  implanted.  The  necessary  decease  of  the  prop- 
erty holder  is  represented  by  his  departure  from  the  school ; 
by  regulation  of  the  board  of  trustees  the  boys  leaving  the  institu- 
tion on  reaching  their  seventeenth  year.  When  the  time  came  for 
some  of  the  monopolists  to  die,  they  could  not  carry  with  them 
their  ill-acquired  rights,  but  none  the  less  did  they  continue  to 
take  an  interest  in  what  they  were  about  to  lose.  They  bethought 
themselves  of  leaving  their  possessions  to  their  friends.  Two  or 
three  boys  were  commonly  associated  in  the  trapping  enterprise, 
and  when  one  departed  he  left  his  land  to  his  partners.  The 
remaining  shareholders  maintained  the  testamentary  rights  thus 
created.  In  this  manner  the  title  to  the  land  was  not  only  taken 
from  the  community  and  put  into  the  hands  of  individuals,  but 
the  wishes  of  the  individual  owners  were  sufficient  to  establish 
the  new  legal  principle  of  testamentary  disposition. 

When  the  system  of  individual  ownership  had  been  in  operation 
two  or  three  years,  it  had  come  about  through  judicious  purchases 
and  devises  that  all  the  land  available  for  catching  rabbits  had 
fallen  into  the  hands  of  three  owners.  They  found  it  impossible, 
although  they  got  up  at  three  o'clock  every  morning,  to  visit  all 
their  traps,  and,  to  relieve  themselves  of  the  burden,  they  began 
to  sell  portions  of  their  land  and  to  lease  others.  A  swamp  famous 
for  its  game  they  let  in  consideration  of  the  payment  of  half  the 
rabbits  caught  in  it.  On  another  occasion  a  lucky  fellow  found 
the  greatest  treasure  obtainable  by  an  egg-hunter  —  the  delicate 
downy  nest  and  pearly  eggs  of  a  humming  bird.  These,  together 
with  some  minor  articles,  he  gave  up  to  a  monopolist  for  a  piece 
of  land. 

The  landlords  have  always  kept  enough  land  in  their  posses- 
sion to  supply  themselves  plentifully  with  game,  and  it  must  be 
said  to  their  credit  that  they  display  remarkable  energy  and  in- 
dustry in  tending  their  traps.  On  the  coldest  morning  of  Novem- 
ber, they  will  leave  their  beds  before  daylight,  and,  lantern  in 
hand,  trudge  off  two  or  three  miles  through  wet  fields  and  dense 
bushes  to  the  rabbit  paths  in  the  swamps,  and  the  "  gnaws  " 
along  the  fences,  where  their  traps  are  set ;  then  back  in  time  for 
chapel  at  half-past  six.  The  walk  is  weary  enough  at  times,  but 
when  they  return  with  a  rabbit  dangling  from  either  hand  they 
feel  amply  repaid  for  all  their  toils.  In  the  course  of  a  single 
autumn  the  catch  often  amounts  to  a  hundred  and  the  possession 
of  these  delicacies  makes  the  favor  of  the  trappers  much  sought 
after  by  some  of  the  boys.     From  this  cause  they  are  at  times 


332  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

attended  by  several  vassals,  ready  for  most  services  required  of 
them.  These  vassals  will  often  visit  such  traps  as  their  lords 
cannot  well  reach,  and  are  rewarded  with  savory  morsels.  The 
principes  and  comites  are  not  generally  troublesome  members  of 
society;  their  rights  are  established,  and,  as  long  as  society  lets 
them  alone,  they  have  every  reason  not  to  quarrel  with  society. 

Some  restless  busybodies  have  at  times  cavilled  at  the  privi- 
leges of  the  landed  aristocracy,  although  they  have  been  so  long 
established ;  and  there  has  recently  been  some  fear  of  an  agrarian 
revolution.  Until  lately  all  the  most  productive  land  was  in  the 
hands  of  three  boys  ;  and  at  length,  envy  of  their  prosperity  caused 
the  rise  of  a  socialistic  party.  These  reformers  desired  that  a  re- 
distribution should  take  place,  and  that  every  boy  entering  the 
school  should  have  an  equal  share  with  those  already  there.  "  The 
land,"  said,  in  substance,  the  leader  of  the  agitation,  "  belongs 
to  all  of  us.  Every  boy  here  has  the  right  to  catch  rabbits.  Boys 
that  leave  the  school  have  no  right  to  give  away  their  land.  It 
belongs  to  those  that  come  to  take  their  places.  We  are  forty- 
seven  to  three.  We  must  combine  and  force  these  robbers  to 
divide." 

These  demands  were  so  vehemently  urged,  that  the  monopolists 
found  it  necessary  to  make  some  concession.  Accordingly  they 
picked  out  some  of  the  least  productive  ditches,  and  gave  them  to 
members  of  the  agrarian  party.  This  had  the  effect  of  quieting 
the  agitation  for  a  time,  but  it  was  soon  renewed.  The  three 
boys  who  held  most  of  the  land  had  promised  to  devise  it  at  their 
departure  from  the  school,  to  a  single  owner,  one  of  their  retainers. 
No  sooner  was  this  known  than  the  socialists  returned  to  the  attack. 
A  dread  of  revolution  took  possession  of  the  landlords,  and  they 
yielded  to  the  popular  clamor  so  far  as  to  forego  their  intention  of 
appointing  a  sole  legatee.  One-third  of  their  property  they  sold 
to  a  firm  of  three  members ;  another  part  they  sold  to  two  boys ; 
and  the  remainder  they  gave  to  another  firm  of  three,  one  of  whom 
was  the  boy  they  had  proposed  making  lord  of  the  manor.  About 
the  same  time  the  socialistic  leader  became  engaged  with  five  others 
in  the  aforesaid  monopoly  of  musk-rat  catching.  These  circum- 
stances cooled  the. zeal  of  the  reformers  and  the  agitation  died  out. 

2.  Boy  Legislation 

The  legislation  of  the  boys  has  been  already  referred  to  in  speak- 
ing of  the  growth  of  ideas  of  property  in  nests  and  trees.     W^e 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  333 

have  seen  how  the  school-fellows  fixed  the  date  of  the  walnut 
harvest,  and  determined  that  nests  should  not  be  taken  from  trees 
marked  with  a  ticket.  No  account,  however,  was  given  of  the 
legislative  body  and  its  procedure.  The  former  resembles  in  the 
extent  of  its  powers  the  primitive  assembly,  or  village  council. 
Its  origin,  however,  was  entirely  independent,  and  not  the  result 
of  any  imitation.  The  boys  have  never  the  faintest  notion  that 
they  are  reproducing  one  of  the  most  ancient  institutions.  They 
do  what  seems  good  in  their  own  eyes,  with  no  reference  to  the 
outside  world,  and  with  no  intention  of  imitating  anything  belong- 
ing there.  Yet  the  account  given  by  Wallace  might  almost  be 
taken  for  a  description  of  the  boy  assembly  at  McDonogh.^  Each 
of  the  assemblies  is  democratic  and  primary ;  each  legislates ;  as 
will  presently  appear,  each  judges ;  each  is  guided  by  an  unwritten 
law ;  each  exerts  itself  to  make  as  nearly  as  possible  a  fair  division 
of  the  communal  property ;  each  fixes  the  date  of  the  opening  of 
harvest.  The  informality  of  the  Russian  assembly  is  naturally 
exceeded  amongst  the  schoolboys.  In  the  Russian  body,  every 
man  is  so  independent  that  the  village  elder  has  only  the  semblance 
of  a  presiding  officer's  authority,  without  the  power  even  to  call 
a  member  to  order.  At  McDonogh  no  president  is  known.  Who- 
ever is  most  influential  takes  the  lead  in  despatching  the  business 

1  I  quote  here  the  liveliest  description  of  such  a  body  that  I  am  ac- 
quainted with.  "The  commune  is,  in  fact,  a  living  institution,  whose 
spontaneous  vitality  enables  it  to  dispense  with  the  assistance  and  guid- 
ance of  the  written  law.  .  .  .  All  the  real  authority  resides  in  the  As- 
sembly, of  which  all  the  heads  of  households  are  members. 

'•The  simple  procedure,  or  rather  absence  of  all  formal  procedure,  at 
the  assemblies  illustrates  admirably  the  essentially  practical  character 
of  the  institution.  The  meetings  are  held  in  the  open  air.  .  .  .  Any 
open  space,  where  there  is  sufficient  room  and  little  mud,  serves  as  a 
forum.  The  discussions  are  occasionally  very  animated,  but  there  is 
rarely  any  attempt  at  speech-making.  .  .  .  The  whole  assemblage  has 
the  appearance  of  a  crowd  of  people  who  have  accidentally  come  together, 
and  are  discussing  in  little  groups  subjects  of  local  interest.  Gradually 
some  one  group,  containing  two  or  three  peasants  who  have  more  moral 
influence  than  their  fellows,  attracts  the  others  and  the  discussion  be- 
comes general.  Two  or  more  peasants  may  speak  at  a  time  and  interrupt 
each  other  freely,  using  plain,  unvarnished  language,  not  at  all  parlia- 
mentary, and  the  discussion  may  become  for  a  few  moments  a  confused, 
unintelligible  noise,  'a  din  to  fright  a  monster's  ear';  but  at  the  moment 
when  the  spectator  imagines  that  the  consultation  is  about  to  be  trans- 
formed into  a  promiscuous  fight,  the  tumult  spontaneously  subsides,  or 
perhaps  a  general  roar  of  laughter  announces  that  some  one  has  been 
successfully  hit  by  a  strong  argwmentum  ad  hominem,  or  biting  personal 
remark.  .  .  .  Communal  measures  are  generally  carried  in  this  way;by 
acclamation. 

"  The  assembly  discusses  all  matters  affecting  the  communal  welfare. 
...     It  fixes  the  time  for  making  hay,  and  for  commencing  the  plowing 
of  the  fallow  field  ;  .  .  .  above  all  it  divides  and  allots  the  communal  land » 
among  the  members  as  it  thinks  fit."  —  Wallace,  "  Russia  ",  Vol.  I,  p.  193. 


334  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

of  the  moment.  It  is  not,  however,  necessary  to  break  the  wind 
of  our  comparison  by  driving  it  too  far;  all  that  is  desired  is  to 
point  out  the  general  similarity  of  the  assembly  at  McDonogh  to 
a  typical  village  council. 

The  entire  informality  of  the  proceedings  of  the  boys  and  the 
principles  that  underlie  their  actions  are  well  brought  out  in  the 
accounts  they  have  given  me  of  the  passage  of  their  more  important 
laws.  When  attempts  were  first  made  at  exclusive  ownership  of 
trees  containing  birds'  nests  and  squirrels'  dens,  the  community 
took  notice  of  the  matter.  Some  boys  had  the  habit  of  marking 
a  tree  by  laying  a  piece  of  wood  at  the  foot,  and  others  by  writing 
their  names  upon  a  piece  of  paper  and  fastening  this  upon  the  bark. 
The  conservative  boys  desired  that  no  system  of  marking  should 
be  permitted.  The  debate  on  the  question  of  what  should  be 
done  was  not  held  on  a  fixed  day,  or  in  a  settled  place,  or  even  in 
the  presence  of  the  whole  body.  School  work  and  play  were  too 
pressing  for  all  to  gather  at  once.  On  the  contrary,  the  subject 
was  talked  over  wherever  several  boys  came  together.  Traditions 
vary  as  to  whether  a  meeting  of  all  the  boys  was  held  to  make  the 
final  test  of  a  vote ;  and  whether  the  time  of  voting  was  extended 
over  a  whole  day  or  even  several  days.  But  whatever  may  have 
been  the  details,  the  essential  facts  are  clearly  enough  described 
in  all  the  accounts. 

After  much  debate,  three  resolutions  respectively  embodying 
the  views  of  the  three  parties  were  written  out  and  pasted  upon  the 
wall  of  the  school  room.  The  vote  was  then  taken,  and  each  boy 
signed  his  name  beneath  the  proposition  that  he  favored,  where  it 
was  in  full  view  of  everyone.  Upon  counting  the  signatures,  a 
majority  was  found  to  be  for  permitting  the  placing  of  tickets 
upon  trees  as  evidence  that  they  were  claimed  by  individuals. 
This  "  rule  "  (which  is  the  term  the  boys  apply  to  their  enact- 
ments) immediately  went  into  effect,  and  has  ever  since  been  the 
law.  The  decision  was  by  most  voices  as  it  would  have  been  at 
Washington  or  Westminster.  In  that  lies  the  cardinal  fact. 
Whether  by  imitation  or  by  instinct,  the  boys  hit  upon  the  prin- 
ciple that  hinges  all  "  government  by  discussion." 

Some  years  after  the  passage  of  the  law  providing  for  the  ticket- 
ing of  trees  as  a  means  of  taking  possession,  it  was  found  that 
labels  tacked  upon  the  trunks  occasionally  fell  to  the  ground; 
whereupon  a  passer-by,  although  he  might  see  the  label  lying  at 
his  feet,  would  take  possession  of  the  eggs  that  it  was  intended  to 
protect.     A  strict  adherence  to  the  letter  of  the  law  is  counted 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  335 

as  righteousness  among  primitive  peoples,  and  our  boys  are  yet 
in  the  savage  state  of  morality.  In  order  to  improve  the  security 
of  property,  a  meeting  was  held  at  which,  I  understand,  but  few 
boys  were  present.  It  was  agreed  by  them  without  any  of  the 
formality  of  a  written  vote,  that  it  should  thereafter  be  unlawful 
to  disturb  any  nest  where  the  label  intended  to  mark  it  could  be 
seen  lying  upon  the  ground.  After  this  assembly  broke  up,  the 
consent  of  a  sufficient  number  of  other  boys,  who  had  been  absent, 
was  obtained  by  going  about  and  asking  them  to  agree  to  the 
"  new  rule."  The  informality  of  the  passage  of  this  statute  seems 
to  have  caused  no  remark,  and  it  is  still  part  of  the  law.  Upon  its 
application  turned  an  interesting  cause  to  be  hereafter  described. 

Some  incidents  seem  to  point  to  the  downfall  of  the  popular 
system  of  law-making.  The  fact  that  a  small  number  of  boys 
have  sometimes  agreed  upon  a  "  rule  ",  and  afterwards  obtained 
the  consent  of  a  sufficient  number  of  the  rest  to  put  it  into  opera- 
tion is  a  constant  temptation  to  the  stronger  and  more  influential 
boys  to  propose  laws  and  declare  them  adopted  without  the  con- 
sent of  a  majority.  The  land  monopolists  take  the  lead  in  this 
revolutionary  measure  and  their  course  is  skilfully  chosen.  They 
are  careful  to  make  such  regulations  as  meet  with  general  approval. 
A  small  body  of  large  boys  may  easily  avoid  a  collision  with  the 
others  and  yet  impose  laws  without  the  formality  of  consulting  the 
rest.  The  next  and  easy  step  is  to  an  oligarchical  government. 
There  are  indications  that  before  many  years  it  will  be  taken,  and 
that  equality  of  political  rights  will  share  the  fate  of  the  equality 
of  property. 

3.  Judicial  Procedure 

Inquiries  into  the  customs  of  the  "  McDonogh  boys  "  cannot 
be  carried  far  before  one  is  struck  with  the  peace  and  good  order 
generally  prevalent  in  the  community.  Fights  between  angry 
boys  do  sometimes  occur,  to  be  sure,  but  the  belief  of  the  authorities 
of  the  school  is  that  the  number  of  these  combats  has  steadily 
decreased  with  the  lengthening  life  of  the  institution.  Little 
fellows  who  have  not  lived  at  the  school  long  enough  to  have  be- 
come imbued  with  the  general  feeling  often  tug  and  strike  im- 
potently  at  each  other ;  but  the  older  boys  so  seldom  ask  the  de- 
cision of  the  fist  that  a  fight  between  two  of  them  is  an  event  never 
to  be  forgotten,  which  tradition  hands  down  with  greater  em- 
bellishment at  each  succeeding  year.  When  a  combat  does  begin 
it  rarely  happens  now  that  the  matter  at  issue  is  connected  in  any 


336  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

way  with  rights  of  property.  Insults  and  bullying  may  lead  to 
fights,  but  disputes  over  nests  or  trees  usually  come  to  a  peaceable 
end.  Yet  this  result  has  not  been  reached  by  active  efforts  on 
the  part  of  the  principal  and  his  assistants  to  prevent  fighting,  or 
even  greatly  to  discourage  it.  No  boy  has  ever  been  punished 
because  he  was  the  bearer  of  a  pair  of  blackened  eyes ;  and  further 
than  to  prevent  exhibitions  of  violence  in  their  immediate  presence, 
the  teachers  have  not  interfered  with  any  arrangement  for  settling 
quarrels  that  might  be  made  by  pupils.  In  spite  of  the  objections 
that  may  be  offered  to  this  official  apathy  by  the  sentimental 
reader,  a  close  approach  has  been  made  among  the  members  of 
a  quite  heterogeneous  body  to  the  desirable  state  of  peace  and 
good  will.  No  control  having  been  exercised  by  the  faculty,  the 
boys  themselves  have  regulated  the  matter. 

The  custom  of  the  school  from  the  earliest  days  has  been,  when 
a  fight  is  in  progress,  to  form  a  ring  of  excited  and  vociferous  specta- 
tors around  the  enraged  pair,  and  to  regard  the  struggle  as  a  gladia- 
torial exhibition  for  the  entertainment  of  the  throng.  The  fighters, 
thus  made  the  center  of  the  public  interest,  are  usually  impelled 
by  self-respect  to  desperate  efforts ;  but  where  this  is  not  so,  the 
lookers-on,  feeling  themselves  defrauded  of  a  proper  gratification, 
will  often  insist  upon  a  continuance  of  the  struggle  until  one  or 
the  other  of  the  combatants  is  thoroughly  beaten.  Every  boy, 
therefore,  feels  he  must  beware  of  entrance  to  a  fight,  and  all  other 
possible  measures  are  usually  tried  before  an  appeal  is  made  to 
force. 

I  should  give  a  very  incorrect  impression,  however,  if  I  per- 
mitted it  to  be  thought  that  the  McDonogh  boys  never  yield  to 
ill  temper.  As  will  presently  appear,  they  are  in  possession  of  an 
effective  means  for  settling  quarrels  over  the  title  to  property, 
but  the  punishment  of  offenders  is  left  to  the  injured  person  and 
his  friends.  When,  in  the  autumn  of  1883,  a  boy  from  the  neigh- 
borhood was  detected  in  robbing  rabbit  traps,  the  owners  of  the 
game  summarily  and  successively  gave  him  a  beating,  without  the 
least  formality  or  authorization.  A  case  has  also  come  to  my  knowl- 
edge where  a  debtor,  who  had  made  an  assignment  of  his  property 
which  proved  insufficient  to  meet  all  demands,  w^as  trounced  very 
soundly  by  an  angry  creditor.  Another  debtor  had  exhausted 
the  patience  of  his  creditors  by  unfulfilled  promises  to  pay,  and 
was  plainly  told  by  them  at  last  that  unless  his  debts  were  liqui- 
dated within  two  weeks,  he  must  fight  them  all  in  succession. 

While  such  deeds  of  violence  stand  out  in  the  reader's  mind, 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  337 

in  the  daily  life  of  the  boys  they  bear  the  same  insignificant  ratio 
to  the  quiet  whole  that  the  murders  held  up  to  daily  horror  in  the 
press  bear  to  the  humdrum  life  of  the  world.  This  peaceful  con- 
dition appears  in  a  more  striking  light  when  one  considers  the 
great  number  cf  questions  for  dispute  certain  to  arise  in  the  daily 
life  of  the  ''  McDonogh  boy."  He  often  hears  discussions  over 
the  rights  of  the  rabbit  trappers  to  the  possession  of  the  land; 
he  can  hardly  fail  to  weigh  the  arguments  by  which  their  practice 
is  attacked  and  defended ;  and  he  is  sure  to  take  sides  either  for 
or  against  them.  The  perplexing  questions  of  the  advantages 
and  disadvantages  of  a  system  of  individual  land-holding  are  not 
the  only  difficulties  with  which  his  sympathies  and  his  reason  have 
to  deal ;  for  the  working  of  the  customs  of  the  school  frequently 
forces  upon  his  notice  intricate  problems  of  right  and  usage.  It  is 
apparent  that  in  the  operation  of  the  somewhat  complicated 
system  of  property  heretofore  described,  it  is  impossible  to  avoid 
disputes,  and  other  causes  of  contention  are  not  wanting. 

The  inconvenience  of  fighting  over  all  these  matters  has  led  the 
boys  to  invent  an  archaic  judicial  system,  which  presents  almost 
as  many  analogies  to  primitive  usage  as  do  the  customs  of  land 
tenure  already  described.  Perhaps  no  savage  usage  is  more  wide- 
spread than  that  of  an  appeal  to  chance  to  decide  questions  of  fact. 
"  The  almost  universal  test  among  savages  of  guilt  or  innocence, 
where  there  is  a  want  or  conflict  of  evidence,  is  the  ordeal,"  says 
P'arrer.^  The  same  author  remarks  that  some  of  these  tests 
"  decide  guilt  not  by  an  appeal  to  the  fear  of  falsehood  as  an  oath 
does,  but  by  what  is  really  an  appeal  to  the  verdict  of  chance." 
The  pages  of  travellers  teem  with  instances  of  this  custom.  When 
the  natives  of  the  Gold  Coast  decide  the  guilt  or  innocence  of  the 
accused  by  the  facility  with  which  he  draws  a  greased  fowl's 
feather  through  his  tongue,  or  a  cock's  quill  from  a  clod  of  earth,^ 
the  result  is  left  entirely  to  accident.  An  equally  unreasonable 
form  of  procedure  is  followed  at  McDonogh  to  decide  many  trivial 
questions.  That  reverence  for  luck  to  which  attention  has  been 
called  by  Bagehot  as  so  strong  among  children  and  savages,  holds 
its  own  there. 

In  the  game  of  marbles,  a  very  intricate  game  as  played  at 
McDonogh,  with  endless  opportunities  for  difference  of  opinion, 
almost  all  questions  of  fact  are  settled  by  a  sort  of  ordeal.  Sup- 
pose, for  instance,  that  Edwards,  Taylor,  and  Fergusson  are  play- 

1  Farrer,  "Primitive  Manners  and  Customs",  p.  173. 
*  Bosman,  quoted  by  Farrer,  ibid.,  p.  175. 


338  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

ing,  and  that  but  one  marble  remains  in  the  ring.  When  this  is 
shot  out  by  Edwards,  each  of  the  others  cries  "  second."  Ap- 
parently^, they  utter  the  word  simultaneously,  but  each  claims  the 
right  to  shoot  next  after  Edwards  in  the  next  round.  ''  I  had 
second  !  "  says  Taylor. 

"  No,  you  didn't :  I  had  it !  "  declares  Fergusson. 

Taylor  then  thrusts  his  hand  into  his  pocket,  and  brings  it  out 
closed  over  one  or  two  marbles. 

"  Odd  or  even  ?  "  he  asks  his  opponent.  The  other  guesses  and 
answers :  if  his  guess  is  right,  he  has  the  second  shot ;  if  he  fails, 
Taylor  precedes  him.  Some  boys  that  I  questioned,  regarded  this 
as  nothing  but  a  device  to  avoid  quarrels  ;  but  others  thought  that 
"  something  would  make  a  fellow  guess  right  if  he  deserved  to." 

Luck  is  also  permitted  to  decide  questions  of  ownership.  In 
the  spring  the  boys  usually  form  partnerships  of  two  or  three 
and  put  all  the  eggs  they  find  into  a  common  box.  In  the  fall 
they  dissolve  these  firms,  and  as  they  always  divide  the  stock  of 
eggs  by  "  drawing  straws  "  for  the  first  choice  and  alternately 
choosing  the  eggs,  they  reach  a  very  unfair  result.  The  boy 
who  draws  the  longest  straw  chooses  the  best  egg  each  time  it  is 
his  turn  to  choose,  while  his  companions  get  the  next  best.  At 
the  end  of  the  division  there  is  usually  a  second  drawing  for  the 
odd  egg.  In  this  drawing  the  boy  who  before  had  the  luck  to  get 
the  first  choice  is  on  as  good  a  footing  as  the  others,  and  of  course  it 
often  happens  that  after  having  chosen  the  best  eggs  he  also  gets 
one  egg  more  than  the  others. 

I  am  conscious  of  a  feeling  that  these  facts  look  petty.  I  am 
aware  that  some  of  my  readers  will  say :  *'  There  is  nothing  re- 
markable here.  Luck  enters  more  or  less  into  every  game.  Why 
call  attention  to  a  thing  everyone  has  seen?  "  I  can  best  answer 
this  in  Mr.  Bagehot's  words :  "  Persons  who  stand  up  for  the 
dignity  of  philosophy,  if  any  such  there  still  are,  will  say  I  ought 
not  to  mention  this  because  it  seems  trivial ;  but  the  more  modest 
spirit  of  modern  thought  plainly  teaches,  if  it  teaches  anything, 
the  cardinal  value  of  occasional  little  facts."  ^  The  very  univer- 
sality of  this  regard  for  luck,  which  is  admitted  in  the  objection, 
is  itself  proof  of  the  proposition  I  desire  to  advance,  viz.,  that 
one  of  the  striking  resemblances  between  children  and  savages 
appears  in  their  constant  appeals  to  chance.  If  everyone  has  in 
his  own  experience  a  fact  going  to  support  this,  the  proof  is  so 
much  the  stronger. 

1  Bagehot,  "Physics  and  Politics",  p.  130  (Eng.  ed.,  1876). 


Chap.    XI. J  RUDIMENTARY  SOCIETY   AMONG   BOYS  339 

An  appeal  to  a  bystander  to  settle  a  quarrel  in  order  to  prevent 
an  appeal  to  force  is  so  common  among  all  boys,  that  everyone 
must  have  in  mind  instances  of  its  occurrence.  When  two  Mc- 
Donogh  boys  quarrel  over  a  rule  of  marbles,  some  one  near  is 
often  asked  to  settle  the  dispute.  A  little  fellow  told  me  that  they 
liked  to  ask  the  mediation  of  "  a  big  boy  who  could  whip  the 
others."  Sir  Henry  Maine  thinks  he  has  traced  to  this  universal 
habit  of  arbitration  the  origin  of  the  Roman  legis  actio  sacramenti. 
"  Its  venerable  forms  pre-suppose  a  quarrel  and  celebrate  the 
mode  of  settling  it.  It  is  a  passing  arbitrator  whose  interposition 
is  simulated  by  the  prajtor."  The  expedient  of  laying  a  wager 
to  seciu-e  the  postponement  of  a  quarrel  (very  common  among 
McDonogh  boys),  the  same  authority,  with  an  apology  for  the 
seeming  triviality  of  his  suggestion,  supposes  "  to  be  the  true 
significance  of  the  sjponsio  and  restipulatio,  which  we  know^  to  have 
been  of  the  essence  of  the  ancient  Roman  condictio  and  of  the 
agreement  to  appear  before  the  praetor  in  thirty  days."  ^ 

Arbitration,  the  ordeal,  and  the  wager  are  not  the  only  modes  of 
settling  quarrels  practised  at  McDonogh.  All  the  boys  near  the 
scene  of  a  dispute  are  sometimes  appealed  to  for  the  decision  of 
a  controversy.  The  simplest  instance  of  the  exercise  of  judicial 
power,  by  a  number  of  boys  together,  occurs  when  several  of 
them  are  inconvenienced  by  some  wrongful  act  of  one.  They 
summarily  decide  his  guilt,  fix  his  punishment,  and  execute  the 
sentence  upon  him.  During  the  summer  vacation  the  boys  re- 
main at  the  school  except  for  a  few  days,  and  their  time  is  spent  in 
light  work  upon  the  farm.  It  sometimes  happens,  when  a  squad 
of  boys  is  sent  into  the  harvest  field,  that  one  of  the  number  is 
told  off  to  bring  them  water  to  drink  during  the  heat  of  the  day. 
The  part  of  water-carrier  is  usually  assigned  to  the  smallest  boy 
present,  and  in  his  frequent  trips  between  the  spring  and  the  wheat 
field  he  may  succumb  to  the  temptation  to  wander  off  after  a 
bird's  nest  or  to  lie  down  in  the  shade.  If  he  is  detected  in  such 
a  misdeed  by  his  companions,  they  seize  his  arms  and  legs,  lift 
him  from  the  ground,  and  swing  his  body  against  the  nearest  tree 
—  a  punishment  known  at  McDonogh  by  the  name  of  "  bumping." 
Any  neglect  of  duty  by  which  a  number  of  boys  are  inconvenienced 
is  likely  to  be  followed  by  this  penalty.  A  boy  whose  business  it 
was  to  bring  the  butter  for  meals  from  the  dairy  to  the  dining  room 
was  once  "  bumped  "  because  his  thoughtlessness  forced  the  whole 
school  to  breakfast  without  that  pleasant  emollient. 

*  Maine,  "Early  History  of  Institutions",  pp.  259,  260. 


340  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

Disputes  arising  from  their  peculiar  customs  of  ownership  are 
settled  by  boys  assembling  at  the  place  where  the  controversy  is 
carried  on.  Most  commonly  this  is  in  the  play-room  where  they 
can  be  free  from  observation.  When  Black  and  Landreth  found 
the  nest  of  a  dove  in  the  pines,  seeing  no  mark  of  prior  owners  upon 
the  tree,  they  took  the  eggs  and  brought  them  to  the  house.  As 
they  sat  in  the  play-room  with  needles  and  straws,  preparing  the 
eggs  for  their  cabinet,  Delphey  overheard  their  talk,  and  questioned 
them  about  the  spot  where  the  nest  was  discovered.  He  soon 
convinced  himself  that  the  nest  was  one  that  he  had  found  but  a 
few  days  before,  and  on  which  he  had  placed  the  mark  of  himself 
and  his  partners.  When  he  was  satisfied  on  that  point  he  at  once 
laid  claim  to  the  eggs.  Landreth  and  Black  angrily  refused  to  give 
them  up,  and  they  were  soon  hot  in  dispute.  Under  the  law  made 
for  such  cases  the  question  of  ownership  is  a  nice  one.  1%  is  granted 
on  both  sides  that  if  Delphey,  the  first  finder,  is  to  retain  a  good 
title,  his  label  must  either  remain  upon  the  trunk  of  the  tree,  or 
else  lie  in  sight  upon  the  ground  beneath,  where  it  has  fallen  by 
accident.  If  neither  alternative  is  complied  with,  any  subsequent 
finder  may  either  take  the  nest  or  mark  the  tree  with  his  own 
label. 

By  this  time  a  knot  of  a  dozen  boys,  who  had  been  idling  about, 
had  formed  around  Delphey,  listening  intently.  In  a  few  moments 
he  called  Duvall,  his  partner,  for  confirmation,  and  with  the  ut- 
most particularity  related  the  circumstances  in  which  he  had  found 
the  nest.  Delphey  told  of  the  route  they  took  over  the  stream, 
through  the  swamp,  and  up  the  hill ;  and  mentioned  the  boys 
they  met  on  the  way,  whom  he  compelled  to  corroborate  his  as- 
sertions. By  the  time  Duvall  takes  up  the  account,  the  ring 
surrounding  them  has  become  larger ;  perhaps  twenty  boys  have 
gathered,  and  they  listen  with  strained  attention.  He  proceeds 
to  describe  the  tree  in  which  the  nest  was  placed,  and  dwells  with 
convincing  minuteness  upon  its  exact  situation,  upon  the  color  of 
the  bark,  the  broken  limb,  the  knot  half  way  up  the  trunk,  and  the 
nailing  of  the  label  upon  it.  To  all  of  his  statements  it  may  be 
that  his  adversaries,  Landreth  and  Black,  assent,  only  interject- 
ing at  intervals  the  words :  "  But  there  wasn't  any  mark  on  the 
tree  when  we  were  there."  The  declarations  of  either  party  are 
addressed  as  much  to  the  throng  around  as  to  their  opponents, 
and  it  is  evident,  in  the  heightened  color  of  the  bystanders,  in 
their  sparkling  eyes,  and  in  their  tense  muscles,  that  to  them  the 
question  is  of  absorbing  interest.     Now  that  the  argument  of  the 


Chap.    XI.]  RUDIMENTARY   SOCIETY  AMONG   BOYS  341 

plaintiffs  has  been  heard  in  full,  there  can  be  no  doubt  that  they 
marked  the  nest  as  they  declare ;  and  yet  there  is  nothing  to  in- 
dicate that  the  defendants  have  any  intention  of  restoring  the 
property. 

Seeing  the  angry  looks  and  threatening  gestures  of  all  the 
group,  one  who  does  not  know  the  school  may  judge  that  blows 
will  follow  next,  and  that  a  general  conflict  is  about  to  ensue 
between  the  partisans  of  the  claimants.  Nothing  could  be  farther 
from  the  truth.  What  has  occurred  is  but  the  ordinary  proceed- 
ing of  a  very  primitive  court  of  justice.  Delphey  knows  that 
Black's  arms  are  strong,  his  fists  hard,  and  his  blows  rapid.  Lan- 
dreth  has  no  desire  to  risk  the  destruction  of  his  treasure  in  a  struggle 
where,  even  if  he  retains  it,  he  is  sure  to  do  so  at  the  cost  of  bruises 
and  blood.  As  he  rises  angrily  from  his  seat  and  pushes  through 
the  crowd,  he  is  not  seeking  space  in  which  to  fight,  but  a  witness 
to  establish  his  title.  This  body  of  spectators,  who  seem  intent 
upon  hearing  the  whole  matter  and  sifting  it  to  the  bottom,  is  — 
if  the  name  will  serve  —  the  folk-moot,  the  assembly  of  the  people, 
met  to  see  justice  done  according  to  law.  Each  boy  standing  in 
the  ring  around  the  orators  knows  that  to-morrow  he  may  be  there 
to  maintain  his  rights  before  a  similar  body,  in  which  the  plaintiff 
and  the  defendant  of  to-day  wdll  alike  have  a  voice  to  decide  upon 
his  claims.  He  has  a  feeling  that  a  decision  contrary  to  estab- 
lished custom,  however  it  may  accord  with  his  momentary  sym- 
pathies, will  be  treated  as  a  precedent  to  overthrow  his  most 
cherished  interests,  and  to  prevent  the  operation  of  rules  upon 
which  he  has  confidently  counted  in  every  venture  in  which  he  is 
engaged.  Every  boy  there  is  determined  upon  the  entire  preserva- 
tion of  the  system  of  law  upon  which  he  has  based  all  his  hopes 
of  filling  his  egg-cabinet. 

We  have  turned  aside  a  moment  from  following  the  actions  of 
the  litigants.  The  clamor  of  voices  rose  louder  as  Landreth  moved 
oft',  but  it  subsided  somewhat  as  he  reappeared,  accompanied  by 
Miller,  on  whose  testimony  he  relied.  The  newcomer  rapidly 
explained  to  those  around  that  he,  too,  had  seen  the  nest  on  the 
day  Landreth  took  it ;  he  had  examined  the  tree,  and  Delphey 's 
mark  was  not  upon  it ;  he  had  searched  the  ground  beneath,  and 
could  not  find  the  label  there ;  he  would  himself  have  carried  off 
the  find,  but  for  the  fact  that  he  saw  only  a  single  egg,  and  thought 
it  better  to  put  his  own  claim-mark  upon  the  trunk,  and  wait  till 
more  eggs  were  laid ;  when  he  had  intended  to  return  and  get 
them.     It  had  happened,  however,  that  during  his  previous  search 


342  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

for  nests  he  had,  in  marking  other  discoveries,  used  up  all  the  labels 
that  he  had  brought  with  him,  and  he  had  therefore  been  unable 
to  appropriate  the  tree  at  the  time.  It  was  after  he  had  gone  away, 
and  before  he  could  return  with  a  label,  that  Landreth  had  found 
the  nest  and  possessed  himself  of  its  contents,  which  had  mean- 
while been  increased  to  two  eggs  by  the  industrious  bird. 

This  evidence  ended  the  trial.  Loud  cries  arose  from  all  parts 
of  the  throng.  "  It's  Doggie's  nest.  It  wasn't  marked  when  he 
found  it",  said  one  member  of  the  tumultuous  court.  "  Your 
mark  was  blown  away,  Rufie",  exclaimed  another ;  "  It's  Doggie's 
nest."  No  opposition  of  importance  was  made,  and,  the  decision 
being  rendered,  Delphey  and  his  partner  saw  their  case  was  lost 
and  slowly  walked  away.  Landreth  and  Black,  who  retained  the 
eggs,  returned  to  their  work  of  blowing  them  with  straws.  The 
making  of  the  claim,  the  trial  and  the  decision,  occupied  less  than 
half  an  hour.     If  not  sure,  this  justice  is  at  least  swift. 

A  word  may  here  be  given  to  the  ethical  questions  brought  up 
by  this  decision.  It  was  admitted  by  all  parties  that  two  boys 
had  found  the  nest  before  Landreth  and  Black  had  seen  it.  Lan- 
dreth's  claims  in  the  view  of  equity  would  have  to  yield  to  Del- 
phey's,  who  not  only  found  the  nest  but  marked  it,  and  who, 
in  so  far  as  prior  discovery  gives  any  rights,  clearly  had  them  all. 
Landreth's  title  rested  upon  a  purely  technical  ground.  Yet, 
with  a  characteristic  analogy  to  primitive  habits  of  thought,  it 
was  considered  that  the  perfect  title  was  obtained  by  a  literal 
fulfilment  of  the  words  of  the  law,  by  an  exact  compliance  with  its 
minutest  provisions.  The  law  provided  that  no  one  should  take 
a  nest  when  the  mark  was  on  the  trunk  beneath,  or  in  sight  upon 
the  ground.  As  it  had  been  proved  by  Miller's  testimony  that 
Landreth  could  not  have  seen  Delphey's  label,  Delphey's  rights 
vanished. 

There  can  be  little  doubt  that  the  negligent  driving  of  a  tack 
was  all  that  made  Landreth  the  better  owner  than  Delphey,  and 
that  Landreth  was  perfectly  aware  of  this  fact.  When  the  suitors 
and  judges  were  questioned  as  to  why  such  a  decision  was  given, 
the  only  reply  to  be  obtained  was,  ''  That's  the  rule."  Like 
Shy  lock,  Landreth  might  have  said:  ''I  stand  here  for  law", 
and  his  determination  was  to  maintain  to  the  full  every  legal 
privilege.  The  idea  that  the  law  might  give  advantages,  the  use 
of  which  morality  could  not  sanction,  is  so  late  of  development 
in  the  legal  history  of  mankind  that  we  must  not  regard  the  ab- 
sence of  such  a  conception  among  these  boys  as  an  indication  of 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  343 

an  abnormally  low  state  of  moral  culture.  To  look  for  exalted 
views  of  right  and  wrong  among  them  would  be  to  expect  them  to 
reverse  the  usual  processes  of  mental  progress. 

I  have  treated  this  incident  at  such  length  because  of  its  typical 
character,  and  of  its  likeness  to  primitive  usage.  If  it  was  an 
event  of  rare  occurrence,  its  significance  would  be  less ;  but  it  is, 
in  fact,  an  example  of  what  occurs  almost  daily  at  McDonogh. 
The  crowd  of  boys  assembled  about  the  contestants,  whose  verdict 
decides  the  controversy,  is,  in  many  respects,  the  counterpart  of 
a  primitive  assembly  of  the  people  in  the  folk-moot.  'Every  boy 
has  the  right  to  express  an  opinion  and  every  boy  present  exercises 
his  privilege,  though  personal  prowess  and  great  experience  in 
matters  of  law  have  their  full  share  of  influence  on  the  minds  of 
the  judges.  The  primitive  idea  that  dispensing  justice  is  a  public 
trust,  which  the  community  itself  must  fulfil  towards  its  members, 
is  embodied  in  this  usage  of  the  "  McDonogh  boys."  The  judges 
are  not  arbitrators  chosen  by  the  disputants,  nor  are  they  public 
functionaries,  whose  sole  business  is  to  preside  over  the  courts, 
but  the  w^hole  body  of  the  population  declares  by  word  of  mouth 
the  right  and  wrong  of  the  matter.  This  tumultuous  body  of 
school-fellows,  giving  decisions  in  quarrels  and  determining  ques- 
tions of  custom,  reproduces  with  remarkable  fidelity,  the  essential 
character  of  the  primitive  assembly. 

4.  Boy  Economy 

It  accords  with  the  analogies  heretofore  drawn  in  this  sketch, 
that  barter  is  common  in  the  trade  of  the  boy-community,  and  the 
staples  of  the  hunting  stage  of  culture  are  much  dealt  in.  When  a 
boy  finds  the  white  eggs  of  a  pewee  he  is  seldom  content  with  once 
despoiling  the  mother  of  her  treasures ;  and,  by  putting  into  the 
empty  nest  a  marble  or  a  round,  white  stone,  he  often  succeeds 
in  inducing  the  credulous  bird  to  repeat  her  maternal  function. 
Not  that  he  desires  to  hoard  more  than  two  or  three  specimens  of 
a  kind ;  but  there  is  a  certain  exchange  value  attached  to  every 
egg,  which  enables  its  possessor  to  buy  others  he  may  lack.  For 
example,  a  hunter  and  trader  has  told  me  of  the  egg  of  a  wood- 
pewee  and  the  egg  of  a  bee-martin  having  been  given  for  a  single 
egg  of  a  yellow-throated  vireo.  Again,  while  one  partridge  egg 
passes  for  one  of  the  red-headed  woodpecker,  and  two  chickadee 
eggs  have  been  paid  for  one  of  the  great  red-shouldered  buzzard, 
no  fewer  than  seven  eggs  of  the  sandy  mocking-bird  are  required 


344  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

to  buy  one  rare  kildeer's  egg.  By  means  of  these  exchanges  a 
hunter  is  able  to  round  off  his  collection,  and  to  give  it  a  complete- 
ness unattainable  if  he  relied  solely  upon  his  own  trophies.  Among 
other  natural  products  forming  subjects  of  barter  may  be  men- 
tioned cherries,  raspberries,  apples,  blackberries,  and  grapes. 
These  are  collected  in  considerable  quantities ;  and  are  exchanged 
with  the  housewives  of  the  neighborhood  according  to  an  equitable 
scale  of  prices,  hot  pies  being  taken  in  return  for  fruit.  After  a 
similar  manner  the  rabbit  trappers,  unable  to  consume  all  their 
game,  put  a  portion  of  it  upon  the  market ;  where  they  receive  in 
payment  any  convenient  articles  of  boy-merchandise,  such  as  a 
knife  or  a  top.  The  successful  squirrel-hunters  obtain  more  of 
these  pets  than  their  affection  is  capable  of  covering,  and  the  sur- 
plus they  exchange  with  such  boys  as  have  not  the  agility  and 
daring  necessary  to  reach  the  aerial  nurseries. 

At  the  same  time,  passing  from  the  hunting  to  the  pastoral 
stage,  they  build  pens  for  their  captives,  where  they  confine  the 
animals,  rearing  and  training  them  for  weeks.  The  attention 
thus  required  sometimes  exceeds  the  ability  of  the  owners,  and 
they  find  it  needful  to  employ  an  assistant.  I  quote  from  The 
Week,  the  little  newspaper  in  which  the  boys  chronicle  their  doings, 
the  following  note  of  a  contract  of  this  sort  between  master  and 
servant : 

"  April  14,  Miller  and  I  made  a  bargain  with  Cook  about  feed- 
ing our  squirrels.  We  told  him  we  would  give  him  a  healthy 
young  gray  squirrel  if  he  would  feed  all  the  squirrels  we  got  this 
year.  We  furnish  the  food,  milk  for  the  young  ones  and  nuts  for 
the  older  ones.  He  feeds  them  from  three  to  five  times  a  day. 
H.  C."  I  hope  I  shall  not  be  thought  to  trifle  with  a  grave  sub- 
ject if  I  suggest  that  in  this  use  of  domestic  animals  as  a  means 
of  paying  wages  we  come  upon  a  reproduction  of  that  old  form  of 
money,  whose  character  is  indicated  in  the  supposed  etymology 
of  our  English  word  fee,  (German  Vieh,  cattle),  so  long  a  standing 
illustration  with  economists.^ 

Commonly  the  primary  object  of  the  hunters  is  to  obtain  a 
handsome  collection  of  curiosities,  and  to  enjoy  the  satisfaction 
of  possession  along  with  the  esteem  inspired  by  success;  but  oc- 
casionally a  boy  hunts  with  a  purely  commercial  end  in  view.  I 
have  been  told  of  one  who  made  a  practice  of  exchanging  all  the 
eggs  he  found  for  the  allowance  of  butter  given  to  his  companions 

1  Roscher,  "Political  Economy",  I,  p.  352.  See  also  Maine,  "Early 
Hist,  Inst.",  "feud",  "fief"  from  Vieh;  cf.  pecunia,  pecus. 


Chap.    XI.]  RUDIMENTARY  SOCIETY  AMONG  BOYS  345 

at  meals.  This  latter  is  dealt  out  to  the  boys  in  approximately 
equal  portions  of  an  ounce  weight,  and  is  frequently  used  by  them 
as  a  means  of  exchange  and  measure  of  value.  A  flying  squirrel 
has  been  known  to  bring  fifteen  ''  butters  " ;  and  a  sling,  five 
'*  butters."  The  unit  is  subdivided  once,  the  fractional  piece 
being  known  as  the  "  half-butter",  and  having  a  purchasing  power 
about  equal  to  that  of  one  cent.  Some  boys  who  entered  upon  the 
manufacture  of  taffy  obtained  the  needed  butter  by  buying  it 
from  the  rest  at  the  price  of  two  cents  for  one  ''  butter  ",  payment 
being  made,  at  the  option  of  the  seller,  either  in  money  or  in  taffy. 

Their  transactions  are  often  so  complicated  that  the  boys  find 
it  desirable  to  lessen  the  number  of  payments  of  this  novel  currency, 
and  they  employ  for  this  purpose  a  system  of  verbally  transfer- 
ring their  claims  from  one  to  another,  somewhat  as  merchants  use 
negotiable  notes.  Perhaps  A  buys  a  knife  from  B  for  ten  "  but- 
ters." B  has  an  outstanding  debt  of  the  same  amount  for  marbles ; 
and  he  transfers  to  his  creditor  C,  his  claim  against  A ;  who  pays 
to  C,  or  to  anyone  else  whom  C  may  designate. 

At  first  glance  this  use  of  butter  as  money  seems  laughably  odd ; 
but  in  fact  it  could  be  easily  paralleled  by  long  lists  of  articles 
equally  far  removed  from  the  gold,  silver,  and  paper  of  our  own 
currency,  which  have  yet  served  as  money  in  different  parts  of  the 
world.  The  wampum  of  the  early  Indians  is  familiar  to  all  readers, 
and  Jevons  and  Roscher  enumerate,  among  many  other  substances 
that  have  been  so  used,  corn,  wolf-skins,  whales'  teeth,  and  straw 
mats.^  The  former  of  these  distinguished  authors  remarks,  that 
*'  it  is  entirely  a  question  of  degree  what  commodities  will  in  any 
given  state  of  society  form  the  most  convenient  currency  " ;  and 
our  boy-state  being  in  a  condition  where  butter  served  the  purpose, 
its  citizens  adopted  that  commodity  as  their  money.^ 

1  Jevons,  "Money  and  the  Mechanism  of  Exchange",  pp.  19-29. 
Roscher,  "Political  Economy",  I,  Section  cxviii. 

2  At  Phillips  Exeter  Academy,  New  Hampshire,  in  my  day,  there  was  a 
pie-currency  in  vogue  among  the  boys  who  boarded  in  Abbott  Hall.  Pie 
was  something  of  a  luxury,  for  it  was  furnished  by  "Burnham",  the  stew- 
ard, only  twice  a  week.  The  idea  of  value  in  exchange  was  naturally 
connected  with  our  Saturday  and  Sunday  allowance  of  pie ;  in  fact  there 
was  a  constant  trading  of  different  sorts  of  pie,  a  boy  offering  his  mince 
or  custard  pie  of  one  week  for  the  apple  or  pumpkin  pie  that  was  to  come 
the  next  week.  Pie-debts  were,  moreover,  incurred  in  a  variety  of  ways, 
chiefly  for  services  rendered,  e.g.  by  one's  chum  in  making  the  fire  on  a 
cold  morning,  when  it  was  not  his  turn ;  or  by  one  student  aiding  another 
in  his  lessons,  etc.  Boys  would  wager  their  pie  sustenance  for  a  week, 
and  sometimes  for  a  month,  on  a  match  game  of  ball.  These  young  bar- 
barians, at  their  ball  play,  used  to  rival  the  ancient  Germans,  who,  as 
Tacitus  describes,  sometimes  staked  not  only  their  property,  but  their 
very  freedom  in  games  of  chance.     What  could  be  greater  recklessness 


346  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

The  agricultural  stage  of  progress  is  scarcely  to  be  discerned  in 
the  history  of  the  boy-community,  the  explanation  perhaps  being 
that  the  boys  have  so  much  agricultural  labor  to  perform  in  their 
daily  tasks  that  they  have  but  little  taste  for  it  during  their  hours 
of  freedom.  At  any  rate,  further  than  to  admit  the  ownership 
of  a  few  neglected  gardens,  they  seldom  take  any  independent 
part  in  tilling  the  ground.  In  the  manufacturing  stage  they  are 
much  more  advanced,  and  some  of  them  have  carried  on  the  mak- 
ing of  taffy  with  considerable  profit.  There  being  no  competing 
shop  within  a  mile's  walk,  a  little  molasses,  a  little  butter,  a  tin 
pan,  and  the  borrowed  stove  of  a  friendly  cook,  or  even  an  im- 
provised furnace  of  stray  bricks,  formed  all  the  capital  required 
for  the  successful  prosecution  of  this  enterprise.  The  market  for 
the  product  was  immediate,  the  demand  pressing,  and  nothing  but 
legal  money  was  taken  in  payment.  It  was  easy  to  treble  the  in- 
vestment at  each  venture,  and  capitalists  who  before  had  counted 
their  possessions  in  cents  soon  began  to  reckon  in  dollars.  Nat- 
urally a  fierce  competition  set  in,  andgamprovements  were  made 
in  the  manufacture :  pulled  tafi^y  was^ubstituted  for  the  crude, 
dark  product ;  and  the  making  of  caramel  was  attempted.  As  a 
means  of  attracting  customers,  sales  upon  credit  were  made,  the 
time  of  payment  being  extended  to  the  next  holiday,  when  sup- 
plies of  cash  might  reasonably  be  looked  for.  It  was  not  long 
before  a  large  part  of  the  community  w^as  deeply  in  debt ;  and  a 
most  interesting  commercial  crisis  might  easily  have  followed  these 
events;  but  knowledge  of  the  state  of  affairs  coming  to  the  su- 
preme government,  the  further  sale  of  confectionery  was  prohibited. 
Such  a  measure  was  not  nearly  so  disastrous  to  the  commercial 
part  of  the  community  as  might  have  been  the  case  in  the  adult 
world;  for  the  juvenile  manufacturer,  when  cut  off  from  any 
market,  is  able  to  consume  his  wares  in  his  own  person,  with  the 
result,  perhaps,  of  only  a  slight  internal  disturbance.  In  order 
to  prevent  any  temptation  to  engage  in  the  illegal  traffic,  the  sale 
of  confectionery  was  made  a  government  monopoly,  like  that  of 

for  a  hungry  boy  than  to  risk  his  pie  for  a  month  on  the  issue  of  a  game 
of  base-ball?  In  ordinary  transactions  the  unit  of  pie- value  at  Exeter 
was  the  ''piece",  which  was  served  us  on  a  special  plate;  but  there  were 
as  many  standards  of  value  as  there  were  sorts  of  pie,  so  that  in  the  set- 
tlement of  a  small  debt  of  one  or  two  "pieces",  boys  sometimes  sought 
to  pay  their  creditors  in  pie  of  an  inferior  or  less  marketable  quality. 
Poor  pie  was  like  trade  dollars.  Sometimes  a  creditor  would  find  him- 
self with  an  embarrassment  of  riches.  If  his  debtors  insisted  in  paying 
off  their  obligations  on  one  day  in  one  sort  of  pie,  he  would  be  obliged 
to  eat  up  all  his  perishable  substance  at  once,  or  to  dispose  of  it  at  a 
considerable  sacrifice.  —  Ed. 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  347 

tobacco  in  Germany,  and  sweets  were  retailed  to  the  citizens  at 
wholesale  prices. 

While  despotic  interference,  as  in  the  matter  of  the  taffy  trade, 
may  prevent  the  natural  development  of  many  interesting  usages, 
it  has  also  given  rise  to  a  new  institution  of  the  highest  importance, 
whose  subsequent  history  cannot  be  neglected.  The  regulation 
of  the  out-door  work  of  the  boys  has  led  to  the  use  of  still  another 
form  of  currency,  and  to  the  establishment  of  a  banking  system. 
When  the  school  was  opened  it  was  found  necessary  to  devise  some 
means  of  punishing  many  petty  offences.  Xone  of  the  ordinary 
penalties,  such  as  writing  ''  lines  ",  or  any  other  sedentary  torture, 
commended  itself  to  those  in  charge;  but  as  the  school  was  in 
possession  of  a  large  farm,  and  as  farm  labor  provided  vigorous 
out-of-door  exercise,  while  it  w^as  at  the  same  time  unpleasant 
enough  for  the  purpose  in  view,  it  was  decided  to  put  the  culprits 
to  work  at  hoeing  and  weeding,  picking  stones,  and  such  like  tasks. 
For  neglect  to  blacken  his  shoes  before  breakfast  a  careless  urchin 
was  compelled  to  spend  an  hour  and  a  half,  hoe  in  hand,  among 
the  cabbages,  while  his  more  heedful  companions  played  baseball 
or  marbles.  A  record  of  each  boy's  misdeeds  was  entered  in  a 
book  and  called  his  "  debits  " ;  and  one  "  debit "  was  cancelled 
when  the  evil  doer  had  spent  the  required  time  in  labor  and  had 
thus  earned  a  *'  credit."  After  his  penance,  his  sins  were  no  longer 
remembered  against  him.^ 

It  was  felt  that  farm  work  afforded  so  valuable  an  industrial 
training,  together  wdth  such  excellent  hygienic  results,  that  it 
would  be  well  to  make  a  systematic  out-door  employment  part 
of  the  education  of  every  boy.  With  this  view  the  whole  school 
was  made  to  husk  corn  and  do  all  other  light  farm  work  affording 
employment  for  all  of  them  together.  When  there  was  not  enough 
work  to  keep  all  busy,  only  those  were  compelled  to  labor  who  had 
peccadilloes  charged  against  them,  or  to  use  the  slang  of  the  school, 
those  who  had  "  got  on  the  work  list."  At  the  same  time  the 
principal  concluded  to  pay  wages  for  the  work  thus  done.  It 
was  then  decided  to  give  each  boy,  whether  charged  with  any 
fault  or  not,  a  "  credit  "  for  every  hour  and  a  half  he  spent  at 
work.     If  he  had  no  misdeeds  to  clear  off,  the  "  credit  "  would 

^  This  system  of  making  manual  labor  a  punishment  was  not  begun 
without  some  fear  lest  it  might  make  the  boys  feel  that  labor  was  degrad- 
ing. Happily  no  such  idea  obtains  among  them,  perhaps  because  the 
ofifences  thus  punished  are  rather  the  result  of  boyish  heedlessness  than 
of  any  moral  turpitude.  Work  is  felt  to  be  an  evil  to  be  avoided,  but 
the  habit  of  industry  never  suffers. 


348  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

indicate  that  he  had  performed  a  work  of  supererogation,  enti- 
tling him  to  impunity  for  a  future  offence. 

"  Credits  "  were  of  Httle  value  in  the  eyes  of  the  boys  until 
they  were  made  transferable.  This  happened  very  soon  and,  in  a 
measure,  through  the  action  of  the  boys  themselves.  A  little 
fellow  who  had  a  faculty  of  getting  into  trouble,  excited  the  pity 
of  a  big  schoolmate  by  having  such  a  score  that  he  could  apparently 
never  balance  it  by  his  own  efforts.  The  older  boy  was  allowed 
to  transfer  to  the  younger's  account  a  portion  of  his  wages  saved, 
and  afterward  any  boy  having  more  "  credits  "  than  "  debits  '^ 
was  freely  permitted  to  dispose  of  the  excess  as  he  wished.  This 
gave  an  exchange  value  to  the  "  credit ''  which  at  once,  and  im- 
mensely, increased  its  importance.  A  boy  who  ''  had  got  on  ten 
days  "  had  only  to  induce  some  one  to  transfer  ten  ''  credits  '* 
to  his  account,  and  he  was  saved  the  discomfort  of  spending  ten 
of  his  afternoons,  axe  in  hand,  at  the  wood-pile.  The  inducement 
for  the  transfer  he  could  provide  in  cake,  apples,  a  top,  a  sling, 
or  any  other  article  of  juvenile  merchandise.  Conversely,  a  boy 
having  a  number  of  "  credits  "  could  buy  many  desirable  articles 
from  those  "  on  the  work  list."  "  Credits  "  at  once  became 
currency,  transferring  and  measuring  value.  Like  all  currency 
as  yet  invented,  the  "  credit  "  is  unstable  in  purchasing  power, 
but  the  prices  here  quoted  will  give  a  reasonably  accurate  idea 
of  the  worth  of  the  unit.  During  the  autumn  of  1884,  twelve 
plain  "  pewee  "  marbles  sold  for  one  "  credit  "  ;  as  did  two  of  the 
more  esteemed  ''  potashes."  Formerly  four  ginger  snaps  fetched 
the  same  price,  or  one  stick  of  cocoanut  candy,  or  one  large  "  life- 
preserver  "  ginger  cake.  Two  ''  credits  "  will  buy  a  plate  of 
dessert ;  "  credits  "  were  the  wages  of  a  boy  hired  to  help  in  the 
walnut  harvest ;  ten  were  given  to  another  for  shaking  a  chestnut 
tree;  twenty-five  for  wading  into  a  tank  of  water  in  search  of  a 
lost  ring ;  and  sixty  for  a  valise.  The  transfer  of  ''  credits  "  is 
effected  by  means  of  a  written  check  in  the  following  form  : 

McDoNOGH,  January  1,  1884. 
Mr.  Lyle: 

Please  give  BouUt  ten  of  my  credits. 

Gilmor. 

This  is  hung  upon  a  nail  driven  into  the  wall  of  the  school 
room,  and  each  morning  the  boy  in  charge  of  the  "  work-list 
book  "  makes  the  proper  entry  of  the  transfer  in  his  accounts. 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  349 

This  boy  is,  as  it  were,  the  banker  for  the  whole  school.  He  keeps 
his  accounts  with  scrupulous  accuracy,  and  it  is  to  the  honor  of 
the  school  that  no  charge  of  corruption  has  ever  been  made  against 
the  custodian  of  a  great  part  of  the  wealth  of  the  community. 

In  the  autumn,  during  the  corn  harvest,  the  whole  school  is 
at  work  for  a  part  of  each  afternoon,  and  almost  the  whole  of 
Saturday.  "  Credits  "  are  regularly  paid  for  this  labor,  and  be- 
come so  plentiful  that  the  total  volume  of  the  currency  sometimes 
reaches  as  high  as  two  thousand.  The  purchasing  power  then 
decreases,  for  whether  a  boy  has  '*  credits  ",  or  is  "  on  the  work- 
list",  he  is  compelled  to  work.  This  period  of  inflation  is  usually 
a  time  of  great  extravagance,  as  many  boys  have  not  sufficient 
forethought  to  consider  that  winter  is  approaching,  when  only 
those  "  on  the  work-list  "  must  work.  They  recklessly  incur 
"  debits  "  by  neglect  of  their  dress,  and,  until  the  prohibition  of 
the  traffic,  they  squandered  their  earnings  in  apples,  candy,  and 
the  large  ginger  cakes  known  as  '"life-preservers"  :  now  they  buy 
butter,  marbles,  rabbits,  or  another  boy's  share  of  dessert.  Specu- 
lators in  these  wares  rapidly  make  a  fortune,  and  secure  for  them- 
selves a  winter  of  ease.  As  the  supreme  government  always  claims 
a  prior  lien  for  its  demands  upon  the  property  of  its  subjects, 
every  boy  is  required  first  to  apply  his  **  credits  "  to  the  payment 
of  his  fines,  or  "  debits  "  ;  and  whatever  debts  he  may  owe,  he  must 
defer  settlement  until  he  has  balanced  his  account  with  the  State. 
The  consequence  of  this  regulation  is  that  the  boys  sell  only  for 
cash,  and  refuse  entirely  to  deal  with  those  who  are  "  on  the  work- 
list."  While  they  are  thus  never  in  debt  to  one  another,  many 
boys  entirely  fail  to  accumulate  any  surplus,  spending  for  trifles 
all  ''  credits  "  left  after  paying  their  fines.  Presently  work  ceases, 
and  "  credits  "  are  no  longer  earned  so  rapidly :  in  a  few  weeks, 
the  more  pressing  labor  of  the  harvest  being  over,  no  one  is  sent  into 
the  fields  who  has  cancelled  all  his  misdeeds.  Many  boys,  how- 
ever, fail  to  behave  with  such  immaculate  propriety  as  to  cease 
incurring  ''  debits  "  at  the  same  time  their  wages  stop.  Having 
laid  up  no  capital  by  the  exercise  of  a  reasonable  frugality,  it  is 
not  long  before  they  are  compelled  to  pay  their  fines  by  manual 
labor ;  and,  as  cold  weather  approaches,  they  begin  to  feel  like  the 
grasshopper  in  the  fable.  Then  the  difference  between  the  owners 
of  '*  credits  "  and  those  who  are  ''  on  the  work-list  "  becomes 
evident.  The  rich  spend  their  afternoons  in  skating  or  sledding, 
while  the  poor  are  grinding  corn  for  the  cattle  or  chopping  wood 
for  fires. 


350  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

The  problem  of  "  progress  and  poverty  "  thus  presented  itself 
to  the  rulers  of  our  boy-community.  The  proletarian  class,  how- 
ever, obtained  an  excellent  discipline  from  its  misfortunes,  and 
no  effort  was  made  to  change  its  condition.  On  the  other  hand  the 
growth  of  a  class  of  wealthy  speculators,  whose  opulence  enabled 
them, to  break  the  laws  with  impunity,  was  an  evil  requiring  cor- 
rection. After  some  years  it  was  found  that  the  older  boys 
amassed  such  fortunes  that  they  no  longer  regarded  a  debit  as  a 
punishment ;  for  the  owner  of  two  hundred  ''  credits  "  was  not 
greatly  incommoded  by  the  loss  of  half  of  one  per  cent  of  his 
property.  So  large  a  capitalist  could  safely  commit  one  hundred 
and  fifty  minor  offences  before  running  the  risk  of  having  to  work 
as  a  penalty.  The  supreme  authority  then  began  to  regulate  the 
acquisition  of  wealth  by  exacting  that  no  boy  in  any  of  the  three 
higher  classes  should  receive  ^'  credits "  from  any  other  boy, 
but  all  might  still  give  "  credits  "  away.  This  threatened  to 
deprive  the  older  boys  of  all  use  of  "  credits  "  as  currency  in  their 
sales,  and  they  cast  about  for  some  legal  means  of  retaining  the 
use  of  this  convenient  money.  They  saw  that  the  only  object 
in  making  the  regulation  was  to  compel  them  to  work  like  the 
others  in  penance  for  their  misdeeds,  and  that  this  could  be  accom- 
plished as  long  as  the  "  credits  "  they  obtained  by  purchase  stood 
UDon  the  book,  not  in  their  own  name,  but  in  the  name  of  some  boy 
in  one  of  the  lower  classes.  They  then  invented  an  ingenious 
bank  of  deposit,  by  which  their  hampered  commerce  was  much 
assisted.  Welsh,  in  the  first  class,  wishing  to  make  a  sale,  and 
being  unable  to  receive  "credits",  in  his  own  name,  as  payment, 
arranged  with  the  buyer  to  make  his  check  payable  to  Cook,  a 
fourth  classman,  with  whom  Welsh  had  an  understanding.  When 
next  Welsh  desired  to  make  a  purchase,  he  sent  his  creditor  to 
Cook,  with  an  order,  and  the  banker  made  the  payment  demanded, 
by  means  of  a  check  in  his  own  name.  When  the  authorities 
learned  of  this  arrangement,  they  made  no  objection,  for,  however 
large  a  fortune  Welsh  might  accumulate  in  trade,  he  could  not 
use  his  balance  at  his  banker's  as  a  means  of  evading  punishment. 

The  extravagance  of  some  of  the  boys  has  led  to  the  devel- 
opment of  savings  banks.  A  youngster,  whom  I  will  call  Stevens, 
found  it  impossible,  as  long, as  his  earnings  remained  in  his  own 
immediate  possession,  to  accumulate  any  large  sums.  Having  a 
friend  in  whose  integrity  he  confided,  he  made  a  practice  of  trans- 
ferring his  *'  credits  "  to  his  friend's  account,  keeping  only  a  small 
balance  in  his  own  name.     In  this  way  he  seemed  to  himself  always 


Chap.    XI.]  RUDIMENTARY   SOCIETY   AMONG   BOYS  351 

poorer  than  he  really  was,  and  he  was  thus  able  to  restrain  his 
extravagance  and  *'  save  up  "  for  any  important  object.  The 
banker  makes  a  profit  from  these  transactions,  because  when  only 
a  portion  of  the  school  can  be  employed  in  the  afternoon,  the  poorer 
part  is  taken,  and  as  the  banker,  with  his  aggregation  of  deposits, 
appears  to  be  rich,  he  is  excused  from  duty. 

While  the  monetary  system  thus  appears  to  have  reached  a 
high  degree  of  excellence  it  should  be  remembered  that  the  ma- 
chinery by  which  it  operates  is  all  furnished  by  the  authorities  of 
the  school,  as  was  the  initial  idea.  If  we  wish  to  see  the  point 
to  which  boys  can  carry,  unaided,  a  commercial  invention,  we 
must  return  to  the  "  butter  "  money.  In  its  use  we  find  only 
verbal  demands  for  payment,  and  verbal  transfers  of  claims.  In 
the  nature  of  the  material  there  is  a  bar  to  an  accumulation  of  cur- 
rency, though  an  accumulation  of  debts  is  frequent.  The  perfection 
of  the  "credit*'  system,  invented  by  the  teachers,  is  to  be  taken 
rather  as  a  contrast  to  the  imperfection  of  the  "  butter  "  system, 
of  the  boys'  devising.  It  is,  however,  possible  that  if  United 
States  money  was  altogether  absent  from  the  community,  necessity, 
the  great  mother  of  invention,  might  have  compelled  the  boys  to 
use  as  currency  some  less  defective  material  than  butter. 

These  observations  have  been  confined  to  a  field  so  narrow, 
that  they  afford  an  insufficient  basis  for  generalization;  and 
they  are  recorded  here  merely  for  the  sake  of  their  suggestiveness 
as  an  indication  of  a  new  field  of  study.  A  review  of  our  facts 
shows  that  in  the  IMcDonogh  School  land  tenure,  legislation, 
judicial  procedure,  and  industry  are  all  of  a  primitive  character. 
Psychological  resemblances  between  children  and  savages  have 
been  noted  before,  and  their  importance  has  been  pointed  out  by 
both  Lubbock  and  Gal  ton.  The  former  omnispective  savant 
some  years  ago  remarked  :  "  The  opinion  is  rapidly  gaining  ground 
among  naturalists  that  the  development  of  the  individual  is  an 
epitome  of  that  of  the  species  —  a  conclusion  which,  if  fully  borne 
out,  will  evidently  prove  most  instructive.  Already  many  facts 
are  on  record  which  make  it,  to  say  the  least,  highly  probable.  .  .  . 
Regarded  "from  this  point  of  view,  the  similarity  existing  between 
savages  and  children  assumes  a  singular  importance.  .  .  ."^  To 
show  a  decided  resemblance  between  barbarian  political  institu- 
tions and  those  of  communities  of  civilized  children,  would  be  a 
long  step  towards  founding  a  science  of  social  embryology. 

^  Lubbock,  "Origin  of  Civilization",  pp.  505,  506. 


D.— RACIAL   FACTORS 

Chapter  XII 

Section  1.    INTERNAL    AND    EXTERNAL    FACTORS    OF 
LEGAL  DEVELOPMENT! 


1.  The  Importance  of  Race. 

2.  No  Convergence   of    Legal 

Political  Development. 


§  3.  Method. 


§  L  The  Importance  of  Race.  Race  pr  blood  is  of  first  im- 
portance among  all  other  important  factors,  in  the  evolution  of 
peoples.  Climate,  geographical  situation,  habits  of  life,  and 
educational  influences,  —  all  these,  in  comparison,  are  secondary. 
Even  legal  institutions  and  religious  beliefs  are  more  dependent 
on  race  than  race  is  dependent  on  them. 

The  contrary  view  which  is  held  in  chief  by  Montesquieu,  and 
also  by  Buckle,  is  easily  refuted  by  the  fact  that  the  same  coun- 
tries without  any  change  of  climatic  or  geographical  condition, 
as  for  example  Asia  Minor  and  Greece,  have  had  entirely  dif- 
ferent civilizations  in  accordance  with  the  difference  of  races 
which  have  inhabited  these  countries. 

It  is  true  that  surrounding  nature  has  exerted  a  very  powerful 
influence  in  the  physical  and  psychical  development  of  mankind ; 
although,  in  the  Darwinian  sense,  according  to  which,  each  species 
and  each  human  race  is  a  complex  of  adaptations.  Yet  the  be- 
ginning of  this  complex  of  adaptations  through  continuous  ac- 
cumulations and  transfers  of  qualities  acquired  by  adaptation,  in 
comparison  with  the  relatively  short  span  of  the  historical  period, 
goes  back  almost  to  endless  time. 

The  loss  of  acquired  qualities,  however,  through  panmixia,  is 
a  matter  of  relatively  short  duration.     The  commonplace  saying 

1  [By  LuDWiG  KuHLENBECK,  Profcssor  of  Law  in  the  University  of 
Lausanne. 

Translated  from  "Natiirliche  Grundlagen  des  Rechts  und  der  Politik" 
(pp.  115,  129,  200  seq.),  Thiiringische  Verlags-Anstalt  Eisenach  u.  Leip- 
zig (date  not  stated),  by  Albert  Kocourek.] 

352 


Chap.   XII,    §  1.]  RACIAL   FACTORS  353 

that  it  is  difficult  to  acquire  wealth  but  easy  to  lose  it,  is  here 
confirmed.  A  thoroughgoing  psychology  of  races  indispensable 
for  sociology  founded  on  natural  science  may  at  once  accept  with 
Gobineau  the  existing  race  types  as  a  positive  datum,  and  may 
consider  race,  as  Le  Bon  has  put  it,  ''a  permanent  entity,  emanci- 
pated from  time."  Therefore  the  difficult  question  of  the  bio- 
genetic and  phylogenetic  origin  of  races  may  be  put  in  the  back- 
ground for  sociological  purposes.  .  .  . 

§  2.  No  Convergence  of  Legal  Development.  In  large  outline 
the  political  and  legal  history  of  each  people  is  nothing  else  than 
an  expression  of  its  constantly  changing  national  character  which 
in  turn  is  determined  by  its  predominant  race  character.  Thus, 
the  conspicuous  trait  of  character  of  Homo  Alpinus  tending  in  the 
direction  of  uniformity  is  found  in  a  leveling  civilization  which, 
in  an  evolution  of  a  thousand  years,  has  marked  the  Latin  nations, 
and  especially  the  French.  .  .  . 

In  the  sphere  of  private  law  an  abstract  evolutionary  theory 
derived  superficially  from  the  supposed  discoveries  of  a  so-called 
science  of  comparative  law,  has  fallen  into  discredit,  and  has 
been  completely  refuted,  especially,  by  Tarde.  This  abstract, 
and  everywhere  .uniform,  development  presupposed  by  the  theory 
of  evolution  as  represented  chiefly  by  Bachofen,  Spencer,  Starke, 
and  Maine,  overlooks  entirely  the  difference  of  races. 

It  puts  at  the  head  of  the  evolution  of  all  races  a  herd  life  with 
promiscuity  of  sex  relations ;  it  assumes,  as  a  primary  institution, 
matriarchy  followed,  without  any  suggestion  of  a  change  of 
circumstances,  by  patriarchy,  and  this  in  its  turn  transformed  by 
an  appreciable  attenuation  among  modern  peoples,  into  paternal 
and  parental  power. 

In  the  law  of  things  it  starts  with  the  universality  of  commu- 
nism, at  least  with  respect  to  the  use  of  land,  from  which  there 
gradually  developed  everjnvhere,  by  virtue  of  certain  immanent 
laws  of  evolution,  the  forms  of  individual  dealing  and  private 
ownership.  The  theory  apparently  manipulates  its  dubious  ideas 
in  such  manner  that  by  force  of  a  dialectic  process  of  world  events, 
so  to  say,  this  last  capitalistic  economic  form  necessarily  must  be 
followed  by  a  more  perfect  stage  of  socialism  such  as  predicted  by 
Marx. 

An  evolutionary  process  with  such  uniforming  is  not,  however, 
in  the  least  confirmed  by  critical  legal  history.  Furthermore,  it 
will  be  seen  on  closer  investigation  that  this  theory  is  contradicted 
by  the  discoveries  made  in  the  field  of  evolution  the  laws  of  which 


354  FACTORS   OF    LEGAL   EVOLUTION  [Part   LI. 

in  consequence  of  the  extraordinary  differences  of  operation  of 
inheritance,  variation,  struggle  for  existence,  and,  above  all, 
tradition,  give  an  entirely  individual  imprint  to  the  legal  devel- 
opment of  every  race.  Again,  regressive  selection  is  never  ex- 
cluded from  the  process  of  historical  growth.  .  .  . 

Evolutionary  doctrine  [Darwinism]  does  not  stand  or  fall  on 
the  acceptance  of  a  uniform  origin  of  life ;  its  laws  remain  unim- 
paired even  though  there  is  proof  of  a  multiple  starting  point. 
Hercy  as  elsewhere,  science  must  be  on  guard  against  two  varieties 
of  error :  first,  against  over- valuation  of  external  conditions ; 
and,  second,  against  over-emphasis  of  a  necessary  and  machine- 
patterned  or  deterministic  internal  evolutionary  process. 

Jhering  has  aptly  remarked  that 

"  The  same  law  which  obtains  in  the  physical  world  holds  also  in 
the  spiritual  world :  life  is  a  receiving  from  without  and  a  taking 
from  within  —  adaptation.  Reception  and  assimilation  are  the 
two  fundamental  functions  upon  whose  existence  and  equal  impor- 
tance the  permanence  and  vigor  of  every  living  organism  depends. 
To  deny  to  the  organism  appropriation  from  without  and  to  condemn 
it  to  develop  from  within  means  death  —  expansion  from  within 
first  begins  with  the  corpse."  ^ 

Roman  private  law  would  have  remained  perpetually  jus  civile 
Qiiiritium  if  the  wars  and  conquests  of  Rome  had  not  brought 
it  into  fruitful  and  stimulating  contact  with  foreign  peoples  and 
races;  whereby,  at  first,  the  praetor  peregrinus  was  brought 
into  association  with  foreign  legal  ideas.  These  ideas  finally 
in  the  shape  of  jus  gentium  influenced  the  praetor  urbanus  and 
led  to  a  regeneration,  or  if  one  prefers,  a  progressive  development 
of  the  law  of  the  XII  Tables,  culminating  in  the  creation  of  classical 
Roman  law  which  will  never  lose  its  traditional  value  for  legal 
culture.  On  the  other  hand,  however,  this  development  would 
not  have  been  possible  without  the  predestination  of  Roman  race 
character  and  race  sense  for  the  law  already  manifest  in  the 
ancient  civil  law. 

A  race  which  lacks  every  endowment  for  legal  construction  is 
in  danger  of  losing  completely  its  legal  system  on  contact  with 
other  races,  and  of  becoming  dominated  by  a  foreign  tradition. 
While  the  Berbers  (the  Guanches)  of  the  Canary  Islands,  retained 
up  to  the  time  of  their  discovery  in  the  1500  s  the  social  customs  of 
the  Stone  Age,  and  were  the  contemporaries  in  point  of  develop- 
1  "Geist  des  rom.  Rechts",  I,  5. 


CllAT.   XII,    §  2.]  RACIAL   FACTORS  355 

ment  of  the  Cro-Magnon  race,  whose  descendants  they  have  often 
been  supposed  to  be,  the  African  Berber  tribes  at  that  period  had 
attained  a  quite  modern  legal  establishment  after  having  been 
overrun  in  turn  by  Egyptian,  Phoenician,  and  Roman  civilization. 
For  instance,  while  the  wife  among  the  Guanches  was  only  like  a 
beast  of  burden,  among  the  Tuaregs  the  wife  had  become  so  far 
emancipated  that  she  exerted  an  indirect  dominion  over  the 
male  comparable  alone  to  the  lofty  position  of  a  lady  in  central 
Europe,  in  her  salon.^ 

§  3.  Method.  To  set  forth  the  spirit  of  the  law  which  will 
present  all  the  individual  internal  and  external  factors  of  develop- 
ment of  all  peoples,  a  genuine  comparative  universal  legal  history, 
is  a  task  worthy  of  the  noblest,  but  it  would  transcend  the  powers 
of  the  greatest  intellect.  It  can  only  be  accomplished  by  the 
unified  labors  in  many  generations  of  learned  investigations. 

Section  2.    THE  RACE   FACTOR  IN   LEGAL   EVOLUTION  2 


§  L    Importance  of  Race. 

§  2.  Influence  of  Race  Character 
on  Legal  Institutions  as 
Shown  by  Rome. 

§  3.  Moral  Character  and  Analyti- 
cal Power  of  the  Romans  — 
Roman,    Greek,    and    Ger- 


manic Law  Compared  — 
Individuality  of  Legal  Sys- 
tems. 

§  4.  Greeks  and  Romans  —  Further 
Comparison  —  The  Family. 

§  5.   Scientific  Confusion. 


§  1.  Importance  of  Race.  Nothing  is  so  convincing  as  the 
consciousness  of  the  possession  of  race.  The  man  who  belongs 
to  a  distinct,  pure  race,  never  loses  the  sense  of  it.  The  guardian 
angel  of  his  lineage  is  ever  at  his  side,  supporting  him  where  he 
loses  his  foothold,  warning  him  like  the  Socratic  Daemon  where 
he  is  in  danger  of  going  astray,  compelling  obedience,  and  forcing 
him  to  undertakings  which,  deeming  them  impossible,  he  would 
never  have  dared  to  attempt.  Weak  and  erring,  like  all  that  is 
human,  a  man  of  this  stamp  recognizes  himself,  as  others  recog- 
nize him,  by  the  sureness  of  his  character,  and  by  the  fact  that  his 
actions  are  marked  by  a  certain  simple  and  peculiar  greatness, 
which  finds  its  explanation  in  his  distinctly  typical  and  super- 
personal  qualities.  Race  lifts  a  man  above  himself:  it  endows 
him  with  extraordinary  —  I  might  almost  say  supernatural  — 

^  C/.  Tarde,  "Les  transformations  du  droit",  p.  164. 

2  [By  Houston  Stewart  Chamberlain. 

Reprinted  from  " Foundations  of  the  Nineteenth  Century"  (trans, 
from  the  German  by  Lees),  Vol.  I,  pp.  269-271,  106-110,  145-152,  155- 
160,  258-259,  John  Lane  Company,  N.  Y.,  1912.] 


356  FACTORS    OF   LEGAL   EVOLUTION  [Part  II. 

powers,  so  entirely  does  it  distinguish  him  from  the  individual 
who  springs  from  the  chaotic  jumble  of  peoples  drawn  from  all 
parts  of  the  world :  and  should  this  man  of  pure  origin  be  per- 
chance gifted  above  his  fellows,  then  the  fact  of  race  strengthens 
and  elevates  him  on  every  hand,  and  he  becomes  a  genius  tower- 
ing over  the  rest  of  mankind,  not  because  he  has  been  thrown  upon 
the  earth  like  a  flaming  meteor  by  a  freak  of  nature,  but  because 
he  soars  heavenward  like  some  strong  and  stately  tree,  nourished 
by  thousands  and  thousands  of  roots  —  no  solitary  individual, 
but  the  living  sum  of  untold  souls  striving  for  the  same  goal.  He 
who  has  eyes  to  see  at  once  detects  race  in  animals.  It  shows 
itself  in  the  whole  habit  of  the  beast,  and  proclaims  itself  in  a 
hundred  peculiarities  which  defy  analysis :  nay  more,  it  proves 
itself  by  achievements,  for  its  possession  invariably  leads  to 
something  excessive  and  out  of  the  common  —  even  to  that 
which  is  exaggerated  and  not  free  from  bias.  Goethe's  dictum, 
"  only  that  which  is  extravagant  (*  iiberschwanglich ')  makes 
greatness  ",  is  well  known.^  That  is  the  very  quality  which  a 
thoroughbred  race  reared  from  superior  materials  bestows  upon 
its  individual  descendants  —  something  ''  extravagant  "  —  and, 
indeed,  what  we  learn  from  every  race-horse,  every  thoroughbred 
fox-terrier,  every  Cochin  China  fowl,  is  the  very  lesson  which  the 
history  of  mankind  so  eloquently  teaches  us!  Is  not  the  Greek 
in  the  fulness  of  his  glory  an  unparalleled  example  of  the  "  ex- 
travagance "  ?  And  do  we  not  see  this  ''  extravagance  "  first 
make  its  appearance  when  immigration  from  the  North  has 
ceased,  and  the  various  strong  breeds  of  men,  isolated  on  the 
peninsula  once  for  all,  begin  to  fuse  into  a  new  race,  brighter  and 
more  brilliant,  where,  as  in  Athens,  the  racial  blood  flows  from 
many  sources  —  simpler  and  more  resisting,  where,  as  in  Lace- 
daemon,  even  this  mixture  of  blood  had  been  barred  out.  Is  the 
race  not,  as  it  were,  extinguished,  as  soon  as  fate  wrests  the  land 
from  its  proud  exclusiveness  and  incorporates  it  in  a  greater  whole  ?  ^ 

1  "Materialien  zur  Geschichte  der  Farbenlehre " ;  the  part  dealing 
with  Newton's  personality. 

2  It  is  well  known  that  it  was  but  gradually  extinguished,  and  that  in 
spite  of  a  political  situation,  which  must  assuredly  have  brought  speedy 
destruction  on  everything  Hellenic,  had  not  race  qualities  here  had  a 
decisive  influence.  Till  late  in  the  Christian  era,  Athens  remained  the 
center  of  intellectual  life  for  mankind ;  Alexandria  was  more  talked  of, 
the  strong  Semitic  contingent  saw  to  that ;  but  any  one  who  wished  to 
study  in  earnest  traveled  to  Athens,  till  Christian  narrow-mindedness 
forever  closed  the  schools  there  in  the  year  529,  and  we  learn  that  as 
late  as  this  even  the  man  of  the  people  was  distinguished  in  Athens  "by 
the  liveliness  of  his  intellect,  the  correctness  of  his  language  and  the  sure- 


Chap.   XII,   §  2.]  RACIAL  FACTORS  357 

Does  not  Rome  teach  us  the  same  lesson?  Has  not  in  this  case 
also  a  special  mixture  of  blood  produced  an  absolutely  new  race, 
similar  in  qualities  and  capacities  to  no  later  one,  endowed  with 
exuberant  power?  And  does  not  victory  in  this  case  effect  what 
disaster  did  in  that,  but  only  much  more  quickly?  Like  a  cata- 
ract the  stream  of  strange  blood  overfiooded  the  almost  depopu- 
lated Rome  and  at  once  the  Romans  ceased  to  be. 

§  2.  Influence  of  Race  Character  on  Legal  Institutions  as 
Shown  by  Rome.  The  Romans  did  not  invent  marriage,  they 
did  not  invent  law,  they  did  not  invent  the  constitutional  freedom- 
giving  State;  all  that  grows  out  of  human  nature  and  is  found 
everywhere  in  some  form  and  to  some  degree;  but  what  the 
Aryan  races  had  conceived  under  these  notions  as  the  bases  of  all 
morality  and  culture  had  nowhere  been  firmly  established  till  the 
Romans  established  it.^  Had  the  Hellenes  got  too  near  Asia? 
Were  they  too  suddenly  civilized?  Had  the  Celts,  who  were  by 
nature  endowed  with  almost  as  much  fire,  become  so  savage  in 
the  wild  North,  that  they  were  no  longer  able  to  construct  any- 
thing, to  organize  anything,  or  to  found  a  State?  Or  was  it  not 
rather  that  blood-mixtures  within  the  common  mother  race,  and 
at  the  same  time  the  artificial  selection  necessitated  by  geographical 
and  historical  conditions  tended  to  produce  abnormal  gifts  (nat- 
urally with  accompanying  phenomena  of  reversion)  ?  I  do  not 
know.  Certain  it  is,  however,  that  previous  to  the  Romans  there 
was  no  sacred,  worthy,  and  at  the  same  time  practical  regulation 
of  matters  relating  to  marriage  and  family ;  no  more  was  there  a 
rational  law  resting  on  a  sure  foundation  capable  of  being  widened, 
or  a  political  organization  able  to  resist  the  storms  of  a  chaotic 

ness  of  his  taste"  :  {Gibbon,  chap.  xl).  There  is  in  George  Finlay's  book 
"Medieval  Greece",  chap,  i,  a  complete  and  very  interesting  and  clear, 
account  of  the  gradual  destruction  of  the  Hellenic  race  by  foreign  im- 
migration. One  after  the  other  colonies  of  Roman  soldiers  from  all  parts 
of  the  Empire,  then  Celts,  Teutonic  peoples,  Slavonians,  Bulgarians, 
Wallachians,  Albanesians,  etc.,  had  moved  into  the  country  and  mixed 
with  the  original  population.  The  Zaconians,  who  were  numerous  even 
in  the  fifteenth  century,  but  have  now  almost  died  out,  are  said  to  be  the 
only  pure  Hellenes. 

1  For  the  Aryan  peoples  in  particular,  see  LeisVs  excellent  "Graco- 
italische  Rechtsgeschichte "  (1884),  and  his  "Altarisches  Jus  civile" 
(189G) ;  also  Jhering's  "  Vorgeschichte  der  Indoeuropaer."  The  ethnical 
investigations  of  the  last  years  have,  however,  shown  more  and  more  that 
marriage,  law,  and  State  exist  in  some  form  everywhere,  even  among 
the  savages  of  least  mental  development.  And  this  must  be  strongly 
emphasized,  for  the  evolution  mania  and  the  pseudo-scientific  dogmatism 
of  our  century  have  brought  into  most  of  our  popular  books  absolutely 
invented  descriptions,  which  are  very  difficult  to  remove  from  them,  in 
spite  of  the  sure  results  of  exact  research  :  and  from  here  these  descrip- 
tions also  force  their  way  into  valuable  and  serious  books. 


358  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

time.  Though  the  simply  constructed  mechanism  of  the  old 
Roman  State  might  frequently  be  awkward  in  its  working  and 
require  thorough  repairs,  it  was  yet  a  splendid  structure  well 
adapted  to  the  time  and  to  its  purpose.  In  Rome,  from  the  first, 
the  idea  of  law  had  been  finely  conceived  and  finely  carried  into 
effect;  moreover  its  limitations  were  in  keeping  with  the  condi- 
tions. Still  more  was  this  the  case  with  the  family.  This  insti- 
tution was  to  be  found  in  Rome  alone  —  and  in  a  form  more 
beautiful  than  the  world  has  ever  since  seen !  Every  Roman 
citizen,  whether  Patrician  or  Plebeian,  was  lord,  yea,  king  in  his 
house :  his  will  extended  even  beyond  death  by  the  unconditional 
freedom  of  bequest,  and  the  sanctity  of  the  last  testament ;  his 
home  was  assured  against  official  interference  by  more  solid  rights 
than  ours ;  in  contrast  to  the  Semitic  patriarchate  he  had  intro- 
duced the  principle  of  agnation  and  thereby  swept  entirely  aside 
the  interference  of  mothers-in-law  and  women  as  a  whole ;  on  the 
other  hand,  the  materfamilias  was  honored,  treasured,  loved 
like  a  queen.  Where  was  there  anything  to  compare  with  this  in 
the  world  at  that  time?  Outside  of  civilization  perhaps;  inside 
it  nowhere.  And  so  it  was  that  the  Roman  loved  his  home  with 
such  enduring  love  and  gave  his  heart's  blood  for  it.  Rome  was 
for  him  the  family  and  the  law,  a  rocky  eminence  of  human  dig- 
nity in  the  midst  of  a  surging  sea. 

§  3.  Moral  Character  and  Analytical  Power  of  the  Romans  — 
Roman,  Greek,  and  Germanic  Law  Compared  —  Individuality  of 
Legal  Systems.  If  law  is  not  an  inborn  principle  nor  an  exact 
science  capable  of  investigation,  but  a  useful  adaptation  of  human 
capabilities  to  the  building  up  of  a  society  fitted  for  civilization, 
then  it  is  clear  from  the  first  that  there  will  be  and  must  be  codes 
of  law  varying  very  much  in  value.  Fundamentally  a  law  will 
be  influenced  principally  by  two  forces  from  which  it  will  receive 
its  characteristic  coloring :  first,  by  the  moral  character  of  the 
people  in  whose  midst  it  comes  into  force,  and,  secondly,  by  the 
analytical  acuteness  of  that  people.  By  the  happy  union  of 
both  —  a  union  occurring  only  once  in  the  history  of  the  world  — 
the  Roman  people  found  themselves  in  a  position  to  build  up  a 
legal  code  of  great  perfection.^     Mere  egoism,  the  greed  of  pos- 

^  The  assertion  that  history  constantly  repeats  itself  belongs  to  the 
countless  untruths  which  are  in  circulation  as  wisdom  among  the  "nono- 
centists."  Never  in  history  —  as  far  as  our  knowledge  goes  —  has  any- 
thing repeated  itself,  never!  Where  is  the  repetition  of  Athens  and 
Sparta?  of  Rome?  of  Egypt?  Where  has  the  second  Alexander 
flourished?     Where  a  second  Homer?     Neither  nations  nor  their  great 


Chap.   XII,    §  2.]  RACIAL   FACTORS  359 

session,  will  never  suffice  to  found  a  lasting  code  of  law.  We  have 
rather  learned  from  the  Romans  that  the  inviolable  respect  for 
the  claims  of  others  to  freedom  and  possession  is  the  moral  foun- 
dation upon  which  alone  we  can  build  for  all  time.  One  of  the 
most  important  authorities  on  the  Roman  law  and  people,  Karl 
Esmarch,  writes :  *'  The  conscience  of  the  Italian  Aryans  in  re- 
gard to  right  and  wrong  is  strong  and  unadulterated ;  in  self-con- 
trol and,  when  necessary,  self-sacrifice,  that  virtue  of  theirs  which 
springs  from  inner  impulse  and  is  supported  by  a  most  profound 
inner  nature,  reaches  its  culmination."  Because  he  knew  how  to 
rule  himself  the  Roman  was  qualified  to  rule  the  world  and  to  de- 
velop a  strong  idea  of  the  State ;  by  the  fact  that  he  could  sacri- 
fice his  own  interests  to  the  universal  weal,  he  proved  his  capacity 
to  establish  valid  principles  in  regard  to  the  rights  of  private  prop- 
erty and  of  individual  freedom.  But  these  high  moral  qualities 
had  to  be  supported  by  exceptional  intellectual  qualities.  The 
Romans,  quite  insignificant  in  philosophy,  were  the  greatest 
masters  in  the  abstraction  of  firm  principles  from  the  experiences 
of  life  —  a  mastery  which  becomes  specially  remarkable  when  we 
compare  other  nations  with  them,  as,  for  example,  the  Athenians, 
who,  though  marvelously  gifted,  and  delighting  in  legal  quarrels 
and  sophistical  law  riddles,  never  were  anything  but  blunderers 
in  this  branch  of  thought.^  This  peculiar  capacity  to  elevate 
definite  practical  relations  to  clearly  defined  principles  implies  a 
great  intellectual  achievement;  for  the  first  time  order  and  lu- 
cidity of  arrangement  were  brought  into  social  conditions,  just  as 
language,  by  the  formation  of  abstract  collective  words,  had  made 
higher  systematic  thinking  possible.  It  is  no  longer  a  question 
of  vague  instincts  nor  of  obscure  and  changing  conceptions  of 
justice  and  injustice ;  all  relations  stand  definitely  grouped  before 
our  eyes,  and  these  relations  are  to  be  regulated  by  the  invention 
of  new  legal  rules  or  the  further  development  of  those  already 
existing.  And  since  life  gradually  widens  experience,  or  itself 
assumes  more  complicated  forms,  the  Roman  acuteness  little  by 

men  return  again.  And  so  mankind  does  not  become  wiser  by  "experi- 
ence"; the  past  offers  it  no  paradigm  for  the  present  to  form  its  judg- 
ment; it  is  made  worse  or  better,  wiser  or  more  foolish,  simply  by  the 
influences  that  are  brought  to  bear  on  its  intellect  and  character.  Gutzkow's 
"Ben  Akiba"  was  fundamentally  wrong  in  his' famous  remark,  "All  has 
occurred  before!"  Such  an  ass  as  he  himself  never  lived  before,  and,  it 
is  to  be  hoped,  will  never  appear  again.  And  even  if  this  were  so,  it 
would  only  be  the  repetition  of  the  individual  who  under  new  circum- 
stances would  commit  new  follies  for  our  amusement. 

'  Cf.  Leist,  "  Graco-italisehe   Rechtsgeschichte",  p.  694,  and   for  the 
following  quotation,  p.  682. 


360  FACTORS   OF    LEGAL   EVOLUTION  [Part   II, 

little  inside  the  individual  "  groups  "  discovers  the  "  species." 
"  In  point  of  fine,  carefully  pondered  ideas  of  right,  Roman  law 
is  and  will  remain  the  permanent  teacher  of  the  civilised  world," 
says  Professor  Leist,  the  very  man  who  has  done  more  than  any 
other  to  prove  that  the  universities  should  give  up  the  present 
one-sided  Roman  standpoint  of  history  of  law  and  should  teach 
students  to  recognize  Roman  law  as  a  link  in  the  chain,  as  one  of 
the  steps  "  which  the  Aryan  mind  has  mounted  in  the  clearing  up 
of  legal  conceptions."  The  more  carefully  we  study  the  nu- 
merous attempts  at  legislation  previous  to  and  contemporary  with 
the  Roman,  the  more  we  recognize  what  incomparable  services 
were  rendered  by  Roman  law  and  realize  that  it  did  not  fall  from 
heaven  but  was  the  creation  of  the  intellects  of  grand  and  sturdy 
men.  One  thing  must  not  be  overlooked  :  in  addition  to  the  qual- 
ities of  self-control,  of  abstraction,  and  the  finest  analysis,  the 
Roman  possessed  a  special  gift  of  plastic  shaping.  Here  appears 
their  relationship  to  Hellenism,  which  we  seek  in  vain  elsewhere. 
The  Roman  too  is  an  artist  of  mighty  creative  power  —  an  artist 
in  the  clear,  plastic  shaping  of  the  complicated  machine  of  State. 
No  theorist  in  the  world  could  have  thought  out  such  an  organism 
of  State,  which  perhaps  should  rather  be  pointed  to  as  a  work  of 
art  than  as  a  work  of  reason.  He  is  still  more  an  artist  in  the 
plastic  working  out  of  his  conceptions  of  law.  Highly  character- 
istic too  is  the  manner  in  which  the  Roman  strives  to  give  visible 
expression  to  his  artistically  moulded  conceptions  even  in  legal 
actions,  everywhere  "  to  give  an  outward  expression  to  the  inner 
diversity,  to  bring  what  is  inward,  so  to  speak,  to  the  surface."  ^ 
Here  we  have  a  decidedly  artistic  instinct,  the  outcome  of  specifi- 
cally Indo-European  tendencies.  In  this  artistic  element  too 
lies  the  magic  power  of  the  Roman  legacy ;  that  is,  the  indestructi- 
ble and  ever  incomparable  part  of  it. 

On  one  point  indeed  we  must  be  quite  clear:  Roman  law 
is  just  as  incomparable  and  inimitable  as  Hellenic  art.  Our 
ridiculous  Germanomania  will  make  no  change  in  that.  People 
tell  marvels  about  a  "  German  law  ",  supposed  to  have  been  stolen 
from  us  by  the  introduction  of  the  Roman ;   but  there  never  was 

1  For  examples,  read  the  splendid  chapter  "Plastik  des  Rechtes",  in 
Jhering's  "Geist  des  romischen  Rechtes",  §23.  Of  the  modern  un- 
dramatic  life  of  law,  Jhering  says  :  *'  One  would  have  liked  to  give  law, 
instead  of  a  sword,  a  quill  as  its  attribute,  for  the  feathers  were  scarcely 
more  necessary  to  the  bird  than  to  it,  except  that  in  the  case  of  law  the 
attribute  produced  the  opposite  effects  and  speed  stood  in  converse  re- 
lation to  the  amount  of  feathers  employed." 


CiLlP.   XII,    §  2.]  RACIAL   FACTORS  361 

a  German  law,  but  merely  a  chaos  of  rude  contradictory  laws,  a 
special  one  for  each  tribe.  It  is  also  absolutely  inaccurate  to 
speak  of  "  adopting  "  Roman  law  between  the  thirteenth  and  the 
sixteenth  centuries ;  for  the  Teutonic  peoples  have  ''  adopted  " 
continuously  from  the  time  when  they  first  came  into  contact 
with  the  Roman  Empire.  Burgundians  and  East  Goths  as  early 
as  the  fifth  century  of  the  Christian  era  (or  at  the  very  beginning 
of  the  sixth)  introduced  modified  (corrupted)  forms  of  Roman 
law,^  and  the  oldest  sources  of  Saxon,  Prankish,  Bavarian,  and 
Alemannic  law,  etc.,  are  so  interlarded  with  Latin  words  and 
half-understood  principles,  that  the  need  of  a  reasoned  codification 
of  law  is  only  too  apparent.  One  might  well  relegate  German 
law  as  an  ideal  to  the  future,  but  to  seek  it  in  the  past  is  hypo- 
critical twaddle.^  Another  hindrance  to  the  proper  estimation  of 
Roman  law  is  due  to  the  frenzy  produced  by  the  dogma  of  evolu- 
tion, which  has  led  to  such  confusion  of  thought  in  the  nineteenth 
century.  The  feeling  for  the  individual,  the  established  view 
that  the  individual  alone  has  everlasting  importance,  has  been 
seriously  injured  by  it.  Although  the  only  effective  powers  that 
history  reveals  are  absolutely  individualized  nations  and  great 
personalities  that  never  recur,  the  theory  of  evolution  leads  to 
the  idea  that  capacities  and  beginnings  were  everywhere  identical 
and  that  essentially  analogous  structures  must  "  develop  "  from 
these  same  germs.  The  fact  that  this  never  happens  and  that 
Roman  law,  for  example,  came  into  being  once  for  all,  does  not 
disturb  our  dogmatists  in  the  least.  With  this  is  connected  the 
further  conception  of  unceasing  progress  towards  "  perfection  ", 
ill  consequence  of  which  our  law  must  as  a  matter  of  course  sur- 
pass the  Roman,  because  it  is  later,  and  yet  nature  never  offers 
an  example  of  development  taking  place  in  anything  living  without 
entailing  a  corresponding  loss.  Our  civilization  stands  high  above 
the  Roman ;  in  respect  of  the  vividness  of  our  legal  sense,  on  the 
other  hand,  an  educated  man  of  the  nineteenth  century  can  cer- 
tainly not  come  up  to  a  Roman  peasant  of  the  year  500  B.C.  No 
one  who  has  any  thinking  power  and  knowledge  will  dispute  that. 
I   said   in   relation  to  law,  not  to  justice.     When  Leist  writes, 

1  Savigny,  "Geschichte  des  romischen  Rechts  im  Mittelalter",  chap.  i. 

2  I  know  no  more  conclusive  proof  of  the  original  incapacity  of  the 
Teutonic  peoples  to  judge  acutely  in  questions  of  law  than  that  such  a 
man  as  Otto  the  Great  could  not  decide,  otherwise  than  by  a  duel,  the 
fundamental  question  whether  descendants  should  inherit  or  not;  this 
judgment  of  Heaven  was  then  adopted  as  a  piece  of  law  for  good  by  a 
pactum  scmpiternum  !     (See  Grimm,  "Rechtsaltertiimer",  3d  ed.,  p.  471.) 


362  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

"  The  unprejudiced  inquirer  will  not  find  that  the  present  age  as 
compared  with  the  Roman  has  made  such  glorious  advance  in 
the  practice  or  even  in  the  knowledge  of  real  justice  'V  he  makes 
a  remark  well  worth  taking  to  heart;  but  I  quote  these  words 
to  make  it  clear  that  I  do  not  here  speak  of  justice,  but  of  law, 
and  to  ensure  that  the  difference  between  the  two  may  be  ob- 
vious. Our  noble  conception  of  the  duties  of  humanity  points, 
I  am  sure,  to  more  enlightened  ideas  with  regard  to  justice ;  the 
legal  sense  is,  however,  quite  a  different  thing  and  is  neither  proved 
nor  promoted  even  by  the  possession  of  the  most  perfect  and 
yet  imported  systems  of  law. 

To  understand  how  incomparable  was  the  achievement  of  the 
Romans,  one  circumstance  must  certainly  not  be  overlooked : 
the  Justinian  corpus  juris  with  which  we  are  familiar  is  only  the 
embalmed  corpse  of  Roman  law.^  For  centuries  skilled  legal  au- 
thorities kept  in  it  a  semblance  of  life  by  galvanic  means ;  now  all 
civilized  nations  have  worked  out  a  law  of  their  own ;  but  this 
would  not  have  been  possible  without  the  Roman ;  we  all  lack  the 
necessary  talent.  A  single  observation  will  suffice  to  show  the 
cleft  between  the  Romans  and  ourselves :  Roman  law  of  the  real 
heroic  period  was  firm  as  a  rock  but  nevertheless  incredibly  elas- 
tic —  "  incredibly  ",  I  mean,  to  our  modern,  timid  conceptions, 
for  we  have  taken  everything  from  that  law  except  its  living 
character.  The  Roman  law  was  always  "  in  a  state  of  growth  ", 
and  capable,  thanks  to  certain  brilliant  contrivances,  of  adapting 
itself  to  the  changing  needs  of  the  times.  The  law,  which  in  the 
fifth  century  B.C.  was  in  its  general  outlines  engraved  in  bronze 
tables  by  the  decemvirs  nominated  for  that  purpose,  was  not  a 
new  and  improvised  code,  nor  one  which  from  that  time  forth  was 
immutable,  but  was  more  or  less  a  codification  of  already  existing 
laws  which  had  grown  up  historically ;  the  Romans  knew  how  to 
invent  ways  and  means  to  keep  it  even  then  from  crystallizing. 
In  dealing  with  the  Twelve  Tables,  for  example,  the  officials  did 
good  service  by  their  acumen  in  "  interpreting  "  —  not  with  the 
object  of  twisting  the  statutes  to  suit  some  special  purpose,  but  of 
adapting  them  half-automatically  to  wider  conditions;  brilliant 
inventions  —  as,  for  example,  that  of  the  legal  "  fiction  ",  by  which 
means  were  found  (if  I  may  express  myself  as  a  layman)  of  put- 

1  "  Graco-italische  Rechtsgeschichte",  p.  441. 

2  Francis  Bacon  points  out  how  inferior  the  corpus  juris  of  Justinian 
is  to  the  genuine  Roman  law,  and  blames  so  "dark  an  age"  for  taking 
the  liberty  of  laying  hands  upon  the  work  of  so  "brilliant  an  age"  in 
order  to  improve  it.     (See  the  dedication  of  the  "Law  Tracts.") 


Chap.   XII,    §  2.J  RACIAL   FACTORS  363 

ting  to  use  existing  legal  norms  to  forestall  others  that  were  not 
yet  existent  —  and  constitutional  arrangements,  like  those  of  the 
praetors,  by  which  a  place  was  assured  to  that  law  of  custom 
which  is  so  necessary  in  a  living  organism,  till  the  best  law  has 
been  provided  by  practice,  arrangements  by  means  of  w'hich 
the  jus  gentium  also  gradually  developed  in  close  touch  with  the 
narrower  Roman  jus  civile  —  all  these  things  brought  about  a 
fresh  pulsating  life  in  law  —  a  life  which  no  one  can  appreciate 
unless  he  has  studied  law,  inasmuch  as  we  have  nothing  of  the 
kind,  absolutely  nothing.^  Moreover,  in  order  to  estimate  the 
gulf  between  us  and  the  Romans,  we  must  remember  that  real 
scholarly  and  trained  jurists  did  not  come  into  existence  till  the 
end  of  the  republic,  and  that  this  splendid,  and  in  most  parts 
most  delicately  chiselled  product  of  legal  applied  art  is  the  work 
of  peasants  and  rude  warriors.  The  reader  should  try  to  make 
clear  to  an  average  philistine  of  the  present  day  the  juristical  dif- 
ference between  property  and  possession,  to  bring  home  to  him  that 
a  thief  is  the  legal  possessor  of  the  stolen  object,  and  as  such  en- 
joys legal  protection  for  his  possession,  as  does  also  the  pawnbroker, 
and  the  hereditary  landlord ;  he  will  not  succeed,  I  know  it  from 
experience;  I  purposely  choose  this  as  a  simple  example.  The 
Roman  peasant,  on  the  other  hand,  who  could  neither  read  nor 
write,  knew  all  this  quite  accurately  five  hundred  years  before 
Christ.^  He  certainly  did  not  know  much  more,  but  his  law  he 
knew  and  employed  with  as  exact  knowledge  as  he  did  his  plough 
or  his  oxen  ;  and  by  knowing  it  and  thinking  about  it,^  by  striving 
to  obtain  for  himself,  his  possessions,  and  his  relatives  an  ever 
firmer  and  more  definite  legal  protection,  he  built  up  that  legal 
structure,  under  which  at  a  later  time  other  races  found  shelter 
in  stormy  days,  and  which  we  at  the  present  day  with  more  or 
less  success,  with  more  or  less  changes,  seek  to  extend,  finish,  and 
perfect.  No  people  but  the  Romans  could  of  themselves  have 
created  and  built  it  up,  for  nowhere  else  was  there  present  the 
necessary  conjunction  of  qualities  of  character  and  of  intellect, 
and  this  law  had  to  be  lived  before  it  was  thought,  before  the 
arrival  of  those  worthies  who  could  tell  us  so  much  that  was 
edifying  in  regard  to  a  "  natural  law  ",   and  thought   it   com- 

1  Especially  of  the  annual  edicts  of  the  prsBtors.  Leist  says  that  they 
had  become  "the  principal  moment  in  the  finer  development  of  Roman 
Law"  (as  quoted  above,  p.  622). 

2  See  the  clear  distinction  between  property  and  possession  in  Table 
VII,  clause  11. 

3  In  Cicero's  time  every  boy  still  learned  the  Twelve  Tables  by  heart. 


364  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

parable  to  the  geometry  which  the  scholar  puzzles  out  in  his 
lonely  room. 

§  4.  Greeks  and  Romans  —  Further  Comparison  —  The 
Family.  Another  national  comparison  with  regard  to  the  for- 
mation of  law  between  the  Hellenes  and  the  Romans  reveals  the 
essence  of  Roman  law,  the  one  point  to  which  I  may  call  special 
attention.  It  will  make  us  feel  how  deeply  our  civilisation  is  in- 
debted to  the  Roman  legacy.  .  .  . 

Every  educated  person  knows  that  the  Greeks  were  not  only 
great  politicians  but  at  the  same  time  great  theorists  of  law.  The 
"  lawsuit  about  the  shadow  of  the  ass  "  ^  is  an  ancient  Attic  witti- 
cism which  satirizes  excellently  the  love  of  this  thoughtless,  liti- 
gious people  for  actions  at  law.  I  recall  too  the  Wasps  of  Aris- 
tophanes with  the  heartrending  prayers  of  Philocleon  when  shut 
in  by  his  son :  "  Let  me  out,  let  me  out  —  to  judge !  "  But  we 
should  look  further  around.  Homer  has  a  court  scene  repre- 
sented on  the  shield  of  Achilles  ("  Iliad  ",  xviii.  497  ff.) ;  Plato's 
largest  works  are  on  politics  and  the  theory  of  law  (the  "  Republic  " 
and  the  "  Laws  ")  5  Aristotle's  "  Rhetoric  "  is  in  parts  simply  a 
handbook  for  advocates  beginning  their  profession ;  notice,  for 
example,  how  in  chap,  xv  of  the  first  book  he  expounds  a  detailed 
theory  of  deceptive  sophistry  for  hedge-lawyers,  gives  them  hints 
how  to  twist  the  law  to  the  advantage  of  their  clients,  and  ad- 
vises them  to  let  their  clients  swear  false  oaths  in  court,  when- 
ever it  is  to  their  advantage.^  .  .  .  We  see  that,  except  in  Sparta 
(where  according  to  Plutarch's  assurance  there  were  absolutely 
no  cases),  the  Hellenic  atmosphere  was  charged  with  questions 
of  law.  The  Romans,  always  ready  to  recognise  the  merits  of 
others,  had,  from  time  immemorial,  recourse  to  the  Greeks,  par- 
ticularly to  the  Athenians,  for  advice  in  the  development  of  their 
law.  Even  when  they  were  about  to  fix  their  fundamental  legal 
principles  (in  the  Twelve  Tables)  for  the  first  time,  they  sent  a 
commission  to  Greece,  and  in  the  final  editing  of  this  earliest 
monument,  an  Ephesian,  Hermodorus,  who  was  banished  from 
his  native  city,  is  said  to  have  been  of  considerable  service.  Time 
made  no  change  in  this.  The  great  authorities  on  law,  a  Mucins 
Scsevola,  a  Servius  Sulpicius,  have  a  thorough  knowledge  of 
Hellenic  legal  enactments ;   Cicero,  and  all  that  this  name  stands 

^  An  Athenian  hires  an  ass  to  carry  his  baggage  to  Megara.  At  a 
resting-place  he  sits  down  in  the  shadow  of  it;  the  driver  will  not  per- 
mit this  without  extra  payment,  as  he  had  hired  the  ass  but  not  its  shadow. 

2  This  belongs,  according  to  the  great  philosopher,  to  "the  means  of 
persuasion  that  lie  outside  of  art." 


Chap.   XII,   §  2.]  RACIAL  FACTORS  365 

for,  derives  his  obscure  remarks  on  divine  justice,  natural  law, 
etc.,  from  Greek  philosophers :  in  the  pseudo-Platonic  Minos  he 
might  have  read  that  law  is  the  discovery  of  an  objective  thing, 
not  a  human  invention,  and  from  Aristotle  he  quotes  the  words, 
"  The  universal  law,  because  it  is  the  natural  law,  never  changes, 
but  the  written  law,  on  the  other  hand,  often  does."  ^  In  the 
later  period  of  the  imperial  decay,  w^hen  the  Roman  people  had 
disappeared  from  the  face  of  the  earth,  the  so-called  "  classical 
jurisprudence  "  was  founded  and  put  into  shape  almost  entirely 
by  Greeks  more  or  less  of  Semitic  descent.  There  is  a  remarkable 
want  of  information  with  regard  to  the  antecedents  and  history 
of  the  most  famous  teachers  of  law  in  the  later  Roman  ages ;  all 
of  a  sudden  they  appear  in  office  and  dignity,  no  one  knowing 
whence  they  have  come.^  But  at  the  beginning  of  the  Imperial 
rule  with  its  inevitable  influence  upon  the  life  of  law  the  passionate 
struggle  between  Labeo,  the  irrepressible,  free  old  plebeian,  and 
Capito,  the  upstart,  who  is  striving  for  wealth  and  honor,  is  truly 
pathetic ;  it  is  the  struggle  for  organic  free  development  in  oppo- 
sition to  the  faith  in  authority  and  dogma.  And  dogma  con- 
quered in  the  legal  sphere  as  in  that  of  religion.  But  in  the 
meantime,  as  we  have  said,  the  practical  Romans  had  learned  a 
great  deal  in  Greece,  especially  from  Solon,  who  had,  as  a  builder 
of  states,  achieved  little  that  lasted,  but  accomplished  all  the 
more  in  the  sphere  of  law.  Whether  Solon  was  the  originator  of 
written  legislation  and  the  momentous  principle  of  actiones  (the 
division  of  suits  according  to  definite  principles),  or  w^hether  he 
merely  systematized  and  fixed  them  —  I  know  not :  at  any  rate 
both  are  derived  from  Athens.^  This  I  mention  only  as  an  in- 
stance of  the  great  importance  of  Greece  in  the  development  of 
Roman  law.  Later,  when  all  Hellenic  countries  were  under 
Roman  administration,  the  Greek  cities  contributed  most  to  the 

1  Up  to  the  present  day  one  finds  this  passage  quoted  in  juristical 
works,  but  with  little  justification,  as  Aristotle  is  here  giving  merely  a 
rhetorical  trick  for  use  in  court  and  on  the  next  page  teaches  the  use  of 
the  opposite  assertion.  Still  less  to  the  point  is  the  passage  from  the 
"Nicomachean  Ethics",  v,  7,  which  culminates  in  the  sentence,  "Law  is 
the  mean  between  a  certain  advantage  and  a  certain  disadvantage." 
How  great  does  Democritus  show  himself  here  as  always  when  he  says, 
with  that  clear  insight  characteristic  of  him,  that  "laws  are  the  fruits  of 
human  thinking  in  contrast  to  the  things  of  nature"  ("Diogenes  Laertius", 
IX,  45). 

2  With  regard  to  the  predominantly  Semitic  and  Sjrrian  race-connec- 
tion of  the  later  codifiers  and  embalmers  of  the  Roman  law,  for  whom  we 
have  shown  too  much  admiration,  see  Leonhard,  "  Roms  Vergangenheit 
und  Deutschlands  Recht",  1889,  p.  91. 

'  Leist,  "Graco-italische  Rechtsgeschichte",  p.  585. 


366  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

formation  of  the  jus  gentium  and  in  that  way  to  the  perfecting  of 
Roman  law.  Here  we  may  ask,  how  is  it  that  the  Hellenes,  so 
superior  intellectually  to  the  Romans,  created  nothing  in  the 
branch  of  knowledge  that  was  lasting  or  perfect,  but  shared  in 
the  great  civilizing  work  of  the  formation  of  law  solely  through  the 
medium  of  the  Romans? 

A  single  but  fatal  mistake  was  at  the  bottom  of  it :  The  Roman 
started  from  the  family,  on  which  basis  he  erected  State  and  law ; 
the  Greek,  on  the  other  hand,  took  as  his  starting-point  the  State, 
his  ideal  being  always  the  organisation  of  the  '^  polls",  while  family 
and  law  remained  subordinate.  All  Greek  history  and  literature 
prove  the  correctness  of  this  assertion,  and  the  fact  that  the 
greatest  Hellene  of  post-Homeric  times,  Plato,  considered  the 
complete  abolition  of  the  family  in  the  upper  classes  a  desirable 
aim,  shows  to  what  fatal  confusions  such  a  fundamental  error 
must  in  time  lead.  With  perfect  right  Giordano  Bruno  says, 
"  The  very  smallest  mistake  in  the  way  in  which  a  thing  is  at- 
tacked leads  finally  to  the  very  greatest  erroneous  discrepancies ; 
thus  the  most  trifling  mistake  in  the  ramification  of  thought  can 
grow  as  an  acorn  does  into  an  oak.''  ^  And  this  was  not  '^  the  very 
smallest  mistake  "  but  a  very  great  one^  Herein  lies  all  the  misery 
of  the  Hellenic  peoples ;  here  we  have  to  seek  the  reason  of  their 
inability  to  develop  either  State  or  law  in  a  lasting  and  ideal 
manner.  If  we  take  up  a  careful  individual  account,  for  example, 
Aristotle's  book  "  The  Athenian  Constitution  ",  discovered  a  few 
years  ago,  this  succession  of  constitutions,  all  different  and  all 
breathing  an  essentially  different  spirit,  makes  us  giddy :  the  pre- 
Draconian,  those  of  Draco,  Solon,  Cleisthenes,  Aristeides,  Pericles, 
the  Four  Hundred,  etc.,  etc.,  all  within  two  hundred  and  fifty 
years !  Such  a  state  of  things  would  have  been  impossible  where 
there  existed  a  firmly  knit  family  life.  Without  that  it  was  easy 
for  the  Greeks  to  arrive  at  that  characteristically  unhistorical  view 
of  theirs,  that  law  was  a  subject  for  free  speculation ;  and  so  they 
lost  all  feeling  for  the  fact  that  in  order  to  live,  law  must  grow  out 
of  actual  conditions.^  And  how  striking  it  is  that  even  the  most 
important  questions  of  family  law  are  regarded  as  subordinate, 

1  The  above  words  are  perhaps  from  one  of  the  very  free  translations 
by  Kuhlenbeck.  In  Bruno's  "De  Immenso  et  Innumerabilibus",  I 
found  the  following  remark  (Bk.  II,  chap,  i) :  "Parvus  error  in  principio, 
magnus  in  fine  est." 

2  J.  Jacques  Rousseau  makes  an  excellent  remark  in  this  connection : 
**Si  quelquefois  les  lois  influent  sur  les  mceurs,  c'est  quand  elles  en  tirent 
leur  force"  ("Lettre  a  d'Alembert  "). 


Chap.  XII,   §  2.]  RACIAL  FACTORS  ^  367 

that  Solon,  for  example,  the  most  prominent  Athenian  as  a  lawyer, 
leaves  the  law  of  inheritance  so  obscure,  that  it  is  left  to  the  ca- 
price of  the  law-courts  to  interpret  it  (Aristotle,  as  above,  division 
IX).  With  Rome  it  was  different.  The  strong  tendency  to 
discipline  here  finds  its  first  expression  in  the  firm  organisation 
of  the  family.  The  sons  remain  under  the  control  of  the  father, 
not  merely  till  their  fourteenth  year,  as  in  Greece,  but  till  the 
death  of  the  father;  by  the  exclusion  cf  relationship  on  the 
mother's  side,  by  the  legal  recognition  of  the  unlimited  power  of 
the  paterfamilias y  even  in  regard  to  the  life  and  death  of  his  chil- 
dren (although  his  son  might  have  risen  in  the  meantime  to  the 
highest  offices  in  the  State),  by  the  greatest  freedom  and  the. most 
accurate  individual  enactments  in  reference  to  the  law  of  wills 
and  legacies,  by  the  strictest  protection  of  all-  the  father's  rights 
of  property  and  legal  claims  (for  he  alone  possessed  a  right  to 
property  and  was  a  ^persona  sui  juris,  i.e.  a  person  with  full  rights 
at  law)  —  by  these  things  and  many  more  the  family  became  in 
Rome  an  impregnably  firm,  indissoluble  unity,  and  it  is  essentially 
to  this  that  we  are  indebted  for  the  particular  form  of  the  Roman 
State  and  Roman  law.  One  can  easily  imagine  how  such  a  strict 
conception  of  the  family  must  affect  the  whole  life,  the  morals  of 
the  men,  the  character  of  the  children,  the  anxiety  to  retain  and 
to  bequeath  what  had  been  acquired,  the  love  of  country,  which 
did  not  need  to  be  artificially  nourished,  as  in  Greece :  for  the 
citizen  fought  for  what  was  assured  to  him  forever,  he  fought  for 
his  sacred  home,'  for  the  future  of  his  children,  for  peace  and 
order. 

§  5.  Scientific  Confusion.  .  .  .  The  ethnographer  Ratzel  as- 
serts that  the  fusion  of  all  mankind  should  be  kept  before  us  as  our 
"  aim  and  duty,  hope  and  wish."  Do  we  not  rather  deduce  from 
the  example  of  Hellas  and  Rome,  on  the  one  hand,  and  of  the 
pseudo-Roman  empire  on  the  other,  as  well  as  from  many  ether 
examples  in  history,  that  man  can  only  attain  his  zenith  within 
those  limits  in  which  sharply  defined,  individualistic  national  types 
are  produced  ?  Is  the  present  condition  of  things  in  Europe  with 
its  many  fully  formed  idioms,  each  with  its  own  peculiar  poetry 
and  literature,  each  the  expression  of  a  definite,  characteristic 
national  soul  —  is  this  state  of  things  really  a  retrograde  step  in 
comparison  with  the  time,  when  Latin  and  Greek,  as  a  kind  of 
twin  Volapiik,  formed  a  bond  of  union  between  all  those  Roman 
subjects  who  had  no  fatherland  to  call  their  own  ?  Is  community 
of  blood  nothing?     Can  community  of  memory  and  of  faith  be 


368  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

replaced  by  abstract  ideals?  Above  all,  is  the  question  one  to 
be  settled  by  each  as  he  pleases ;  is  there  no  clearly  distinguishable 
natural  law,  according  to  which  we  must  fit  our  judgment?  Do 
not  the  biological  sciences  teach  us  that  in  the  whole  animal  and 
vegetable  kingdoms  preeminently  noble  races  —  that  is,  races 
endowed  with  exceptional  strength  and  vitality  —  are  produced 
only  under  definite  conditions,  which  restrict  the  begetting  of  new 
individuals?  Is  it  not  possible,  in  view  of  all  these  human  and 
non-human  phenomena,  to  find  a  clear  answer  to  the  question, 
What  is  race  ?  And  shall  we  not  be  able,  from  the  consciousness 
of  what  race  is,  to  say  at  once  what  the  absence  of  definite  races 
must  mean  for  history  ? 


Chapter  XIII 

INFLUENCE     OF     NATIONAL     CHARACTER     AND     HIS- 
TORICAL  ENVIRONMENT   ON   THE   DEVELOPMENT   OF 
THE   COMMON  LAW^ 


§  1.  Distinguishing  Characteristics 
of  the  Common  Law. 

§  2.  The  Race  Factor  in  the  Devel- 
opment of  the  Common  Law. 


§  3.   The    Geographical    Factor    in 
the  Common  Law. 


§  L  Distinguishing  Characteristics  of  the  Common  Law. 
Wliat  would  a  skilled  observer  select  as  the  distinguishing  quali- 
ties, the  peculiar  and  characteristic  notes  of  the  Common  Law? 

First,  its  firm  grasp  of  the  rights  of  the  individual  citizen.  He 
is  conceived  of,  he  is  dealt  with,  as  a  center  of  force,  an  active 
atom,  a  person  in  whom  there  inhere  certain  powers  and  capacities, 
which  he  is  entitled  to  assert  and  make  effective,  not  only  against 
other  citizens,  but  against  all  other  citizens  taken  together ;  that 
is,  as  against  the  State  itself  and  its  organ,  the  executive  govern- 
ment. 

Secondly,  its  recognition  of  the  State  and  the  executive  as 
clothed  with  the  authority  of  the  whole  community,  as  being  an 
effective  power,  entitled  to  require  and  compel  the  obedience  of 
the  individual  wherever  and  whenever  it  does  not  trespass  on  the 
rights  which  are  legally  secured  to  him.  To  be  effective,  law 
must  have  not  only  executive  force  behind  it,  but  also  the  prin- 
ciple of  legitimate  authority,  the  sense  in  every  citizen  that  his 
individual  free  will  has  its  limits,  and  can  be  exerted  only  within 
the  sphere  allotted  to  it.  .  .  . 

These  two  principles  go  together.  The  one  is  a  safeguard 
against  tyranny,  i.e.  the  absolute  and  capricious  will  of  the  gov- 
erning powei*;    the  other  against  anarchy,  i.e.  that  unrestrained 

^  [By  James  Bryce. 

Annual  Address  to  American  Bar  Association,  1907.  Reprinted  from 
A.  B.  A.  Rep.,  XXXI,  pp.  444-459.] 

369 


370  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

and  unlimited  exercise  of  the  will  of  each  and  every  citizen  which 
must  result  in  collision  and  disorder. 

It  may  be  suggested  that  these  two  principles  are  not  peculiar 
to  the  Common  Law,  because  no  law  could  grow  up,  no  State  could 
prosper,  without  both  of  them.  That  is  true.  But  there  have 
been  systems  of  law  in  which  sometimes  the  one,  sometimes  the 
other  principle,  was  imperfectly  developed,  and  (so  to  speak) 
overweighed  by  the  other.  The  former  principle  especially  (viz., 
the  recognition  of  the  rights  of  the  citizen)  has  often  been  quite 
too  weak  to  secure  due  protection  to  the  individual  man.  It  is 
the  clearness  with  which  both  have  been  recognized,  the  fullness 
with  which  both  have  been  developed,  in  the  mediaeval  and  post- 
mediaeval  English  law  that  constitutes  its  highest  merit. 

From  the  equal  recognition  of  these  two  principles  there  fol- 
lows a  third  characteristic.  If  principles  apparently  antagonistic 
are  to  be  reconciled,  there  must  be  a  precise  delimitation  of  their 
respective  bounds  and  limits.  The  law  must  be  definite  and 
exact.  Now  precision,  definiteness,  exactitude  are  features  of 
the  Common  Law  so  conspicuous  that  the  unlearned  laity  some- 
times think  they  have  been  developed  to  an  inordinate  degree. 
They  have  made  the  law,  not  only  very  minute,  but  very  tech- 
nical. 

With  the  love  of  precision  there  naturally  goes  a  love  of  cer- 
tainty and  fixity.  The  spirit  of  the  Common  Law  is  a  conserva- 
tive spirit,  which  stands  upon  what  exists,  distrusting  change, 
and  refusing  change  until  change  has  obviously  become  neces- 
sary. "Stare  super  antiquas  vias '\'  "  nolumus  leges  Angliae 
mutari  "  ;  "  it  is  better  that  the  law  should  be  certain  than  that 
the  law  should  be  just  "  :  these  were  favorite  dicta  among  the 
lawyers  of  the  old  school  in  England. 

The  respect  for  what  has  been  settled,  and  the  desire  that  what 
has  been  settled  should  be  definite  in  its  terms,  import  a  deference 
to  precedent.  No  legal  system,  not  even  the  Mussulman  law, 
grounded  on  Koranic  interpretation  and  traditions,  has  ever  gone 
so  far  as  the  Common  Law  in  basing  itself  on  cases  judicially 
determined  and  recorded. 


With  the  love  of  certainty  and  definiteness  there  goes  a  respect 
for  the  forms  of  legal  proceedings  and  for  the  precise  verbal  ex- 
pression given  to  rules.  This  is  a  quality  which  belongs  to  most 
legal  systems  in  their  earlier  stages.     In  the  Common  Law  it 


Chap.   XIII.]       RACE  AND   ENVIRONMENT   AND   THE   COMMON   LAW      371 

held  its  ground  with  great  pertinacity  till  very  recently  both  in 
England,  and  here.  .  .  . 

You  may  think  that  among  the  features  that  characterize  our 
Common  Law  I  ought  to  name  the  love  of  justice  and  also  the 
fondness  for  subtle  distinctions.  I  do  not,  however,  dwell  on  the 
latter  of  these,  because  it  belongs  to  all  legal  systems  that  reach 
a  certain  point  of  development,  and  is  even  more  evident  in  some 
others  than  in  our  own.  The  robust  common  sense  which  is 
inherent  in  the  Common  Law  seldom  encouraged  fine  distinctions 
to  go  beyond  a  certain  point.  As  for  the  love  of  justice,  it  be- 
longs to  mankind  generally,  and  to  all  systems  of  law.  Such  dif- 
ferences as  may  be  noted  between  different  peoples  consist  not  in 
the  reality  of  the  wish  to  give  every  man  his  due  —  suum  cuiqiie 
tribuere  —  but  in  the  self-control  which  prevents  emotional  im- 
pulses from  overriding  justice,  in  the  practical  sense  which  per- 
ceives that  to  allow  the  forms  of  law  to  be  neglected  or  unusually 
harsh  treatment  to  be  inflicted  where  a  cause  or  a  person  happens 
to  be  unpopular,  is  really  to  injure  the  community  by  impairing 
the  respect  for  law  itself  and  the  confidence  in  its  administration.  . .  . 

The  foregoing  characteristics  of  our  Common  Law  are  submitted 
for  your  consideration,  not  as  being  the  only  ones  which  belong 
to  it,  for  others  might  be  added,  but  as  being  characteristics  so 
broad  and  salient  as  to  make  it  comparatively  easy  to  discuss 
them,  and  to  endeavor  to  account  for  them.  Some  are  found  in 
all  systems  that  have  reached  a  high  level  of  scientific  develop- 
ment, being  indeed  qualities  without  which  no  system  could  be 
deemed  excellent.  Only  one  other  system,  the  Roman,  possesses 
them  in  so  large  a  measure  as  to  deserve  comparison. 

§  2.  The  Race  Factor  in  the  Common  Law.  To  what  are  we 
to  ascribe  these  features  distinctive  of  the  Common  Law?  The 
in-dwelling  qualities  of  the  race  of  men  who  built  it  up  must  have 
been  a  principal  and  indeed  the  primary  cause.  The  mind  and 
character  of  a  people  are  indeed  more  exactly  and  adequately 
expressed  in  and  through  its  law  and  institutions  than  they  are 
through  its  literature  or  its  art.  For  books  and  paintings  are  the 
work  of  individual  men,  many  of  whom  may  have  been  greatly 
influenced  by  foreign  ideas  or  foreign  models ;  and  some  of  whom, 
powerful  enough  to  influence  their  successors,  may  not  have  been 
typical  representatives  of  the  national  genius.  But  laws  are  the 
work  of  the  nation  as  a  whole,  framed  indeed  by  the  ruling  class, 
and  shaped  in  their  details  by  a  professional  class,  but  to  a  large 
extent  created  by  other  classes  also;    because  (except  in  those 


372  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

few  cases  where  a  conqueror  imposes  his  own  law  on  the  vanquished) 
the  rules  which  govern  the  relations  of  the  ordinary  citizen  must 
be  such  as  fit  and  express  the  wishes  of  the  ordinary  citizen,  being 
in  harmony  with  his  feelings  and  fitted  to  meet  the  needs  of  his 
daily  life.  They  are  the  offspring  of  custom,  and  custom  is  the 
child  of  the  people.  Thus  not  only  the  constructive  intellect  of 
the  educated  and  professional  class  but  the  half-conscious  thought 
and  sentiment  of  the  average  man  go  to  the  making  and  moulding 
of  the  law.  It  is  the  outcome  of  what  German  philosophers  call 
the  legal  mind  ("  Rechtsbewusstsein  ",  or  legal  consciousness)  of 
a  nation. 

But  law  is  the  product  not  of  one  or  two  generations  but  of 
many.  National  character  is  always  insensibly  changing,  and 
changing  more  rapidly  the  more  advanced  in  civilisation  the 
nation  becomes,  the  greater  the  vicissitudes  in  its  fortunes,  the 
more  constant  its  intercourse  with  other  nations.  Hence  institu- 
tions become  the  expression  not  solely  of  those  original  gifts  and 
tendencies  of  a  race  or  a  people  which  we  observe  when  it  emerges 
from  prehistoric  darkness.  Time  and  circumstances  cooperate 
in  the  work.  Law  is  the  result  of  the  events  which  mould  a  nation 
as  well  as  of  the  mental  and  moral  qualities  with  which  the  nation 
started  on  its  career.  These  two  elements  are  so  mixed  and 
blended  in  their  working  that  it  is  hard  to  describe  them 
separately.  Nevertheless  let  us  try.  Let  us  begin  by  a  glance 
at  the  inborn  talents  and  temper  of  the  race,  and  then  see 
how  the  course  of  history  trained  their  powers  and  guided  their 
action. 

All  the  Teutons  are  strong,  resolute,  even  wilful ;  and  the  Low 
Germans  and  Northmen  were  the  most  active  and  forceful  branches 
of  the  Teutonic  stock.  Every  man  knew  his  rights  and  was 
ready  to  assert  his  rights  by  sword  and  axe.  Not  only  so,  he  was 
ready,  where  society  had  become  advanced  enough  for  courts  to 
grow  up,  to  assert  his  rights  by  legal  process  also.  Read  the 
Icelandic  sagas,  in  which  records  of  killings  and  of  lawsuits  are 
mingled  in  about  equal  proportion,  if  you  wish  to  realize  how 
keen  was  the  sense  each  freeman  had  of  his  own  claims  and  how 
resolute  he  was  in  enforcing  them.^  Never  was  there  a  people 
more  fond  of  legal  strife  than  were  the  Norwegians  and  Danes, 
who  spread  tl^emselves  over  Eastern  Britain  in  the  ninth  and 
tenth  centuries,  or  than  their  brethren,  whom  Rolf  Ganger  led 
to  the  conquest  of  the  northern  coast  of  France  in  the  ninth 
1  See  the  Njals  Saga  Vol.  I  (pp.  122-209)  in  this  series. 


Chap.   XIII.]      RACE  AND   ENVIRONMENT  AND   THE   COMMON   LAW      373 

century.  The  Norman  peasant  is  proverbial  today  in  France  for 
his  litigiousness. 

In  this  self-assertiveness,  however,  there  is  no  disregard  of  duly 
constituted  authority.  The  primitive  Teuton  had  his  Folkmot 
in  England,  his  Thing  in  Norway  and  Iceland.  He  was  loyal  to 
his  chief  or  king.  He  felt  his  duty  to  the  community  wherein  he 
lived.  He  did  not  always  obey  the  law,  but  he  respected  the 
law,  and  felt  the  need  of  its  enforcement. 

It  belongs  to  a  strong  race  to  have  the  power  of  self-control. 
Our  forefathers  were  fierce  and  passionate,  like  other  half-civilized 
peoples,  but  they  had  this  power  and  they  restrained  themselves 
from  overriding  the  process  of  law  and  letting  passion  work  in- 
justice many  a  time  when  men  of  other  races,  Greeks,  or  Slavs, 
or  Celts,  would  have  yielded  to  their  impulses.  So  too  they  had  a 
latent  solidity  and  steadiness  which  indisposed  them  to  frequent 
or  fitful  change.  Compared  with  their  Slavonic  neighbors  to 
the  east  and  their  Celtic  neighbors  to  the  west,  races  at  least  as 
intellectually  quick  and  intellectually  fertile,  the  Teutons  have 
always  been  of  a  conservative  temper.  This  may  be  —  so  we  like 
to  think  —  a  mark  of  good  sense  and  patience,  or  it  may  be  an 
attribute  of  dogged  and  slowly  moving  minds.  Anyhow,  there 
it  is,  and  (as  already  remarked)  for  the  purposes  of  law-building, 
it  is  a  merit  of  the  first  magnitude. 

Further,  the  mediaeval  English  mind  was  of  a  practical  rather 
than  of  a  speculative  type.  It  had  plenty  of  acumen,  plenty  of 
logical  vigor.  But  it  did  not  run  to  the  spinning  of  theories  or  the 
trying  of  experiments.  This  has  been  characteristic  more  or  less 
of  the  English  and  the  American  mind,  and  I  may  add  of  the 
Low  German  or  Dutch  mind,  ever  since,  as  compared  with  the 
Scotch  mind  and  with  our  brethren  the  High  Germans  of  the 
European  continent. 

Here,  then,  we  have  noted  five  characteristics  of  those  to  whom 
we  owe  the  Common  Law.  They  were  strong  men  and  pugnacious 
men ;  they  respected  authority ;  they  could  at  need  control  their 
impulses ;  they  were  not  given  to  change ;  they  were  not  fertile 
in  theory  or  invention.  With  these  qualities  they  started  on  the 
work  of  making  a  law.  How  did  the  conditions  of  England  from 
the  twelfth  to  the  eighteenth  century  aflFect  them,  and  so  guide 
their  action  as  to  bring  out  in  the  fulness  of  time  the  legal  product 
we  have  inherited,  a  fruit  very  different  from  that  which  ripened 
under  the  sun  of  Germany  or  France? 

The  English  King  in  the  Middle  Ages  was  strong,  stronger  than 


374  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

the  Kings  of  France  or  Castile  or  Aragon.  He  was  from  the 
days  of  Henry  II  onwards,  effective  master  (except  for  brief  in- 
tervals) of  the  whole  realm.  He  was  able  to  make  his  executive 
authority  feared  even  if  it  was  sometimes  disobeyed.  His  writ 
ran  everywhere.  His  judges  travelling  through  the  country 
brought  the  law  to  the  sight  of  all  men. 

His  aim,  and  that  of  his  judges,  was  during  the  thirteenth  and 
fourteenth  centuries  to  build  up  one  law,  instead  of  the  variety 
of  the  diverse  customs  such  as  had  grown  up  in  Continental  Eu- 
rope. Thus  he  and  they  must  needs  strive  to  make  the  law 
clear  and  certain.  Such  it  became.  Here  and  there,  as  in  Kent 
and  in  some  old  boroughs,  local  land  customs  survived,  yet  not 
enough  to  mar  the  unity  and  definiteness  of  the  law  as  a  whole. 

From  good  motives  as  well  as  bad  ones,  the  king  was  tempted  to 
stretch  his  authority,  and  make  himself  almost  a  despot.  He  was 
so  strong  over  against  the  barons  that  they  were  obliged  from 
time  to  time  to  ally  themselves  with  the  church  —  usually  their 
antagonist  —  and  with  the  middle  class  of  small  landholders  and 
burghers.  This  alliance  was  in  the  interests  of  freedom  and  of  a 
limitation  of  royal  power.  To  it  we  owe  Magna  Charta,  and 
the  long  line  of  restrictions  thereafter  imposed  on  arbitrary  gov- 
ernment. .  .  . 

Just  as  the  barons  and  the  people  were  obliged  to  base  them- 
selves upon  the  solemnly  made  engagements  of  the  crown  as  the 
evidence  of  their  immunities,  so  the  crown,  acting  through  its 
judges,  being  not  strong  enough  to  make  its  own  policy  or  view  of 
what  was  right  prevail  as  a  mere  exercise  of  the  sovereign's  own 
will,  and  desiring  to  have  some  positive  authority  to  set  against 
the  texts  quoted  from  imperial  or  papal  law  by  the  civilians  of 
the  canonists,  was  forced  to  rely  upon  acts  previously  done,  de- 
cisions previously  delivered,  and  to  found  the  law  upon  them. 
Thus  both  parties  were  led  to  appeal  to  and  lay  stress  upon  prec- 
edents. The  rights  which  the  law  enforced  were,  as  usually  hap- 
pens in  early  times,  much  involved  with  the  procedure  for  en- 
forcing them;  and  the  desire  to  secure  uniformity  of  procedure 
in  the  King's  courts  led  to  the  constant  citation  of  judgments 
delivered  on  previous  occasions.  Under  these  conditions,  and 
favored  by  them,  there  grew  up  that  habit  of  recording  and  fol- 
lowing decided  cases  which  is  so  eminently  and  indeed  uniquely 
characteristic  of  the  Common  Law. 

The  balance  of  forces  in  English  mediseval  society  appeared 
most  clearly  in  the  relations  of  lord  and  vassal.     Each  had  un- 


Chap.   XIII.]        RACE  AND   ENVIRONMENT  AND   THE   COMMON   LAW      375 

questionable  rights,  and  these  rights  were  apt  to  come  into  con- 
flict. The  adjustment  of  conflicting  claims  gave  constant  occu- 
pation to  the  lawyers  and  the  judges,  and  while  forming  habits 
of  exact  thought  and  precise  statement,  it  created  a  great  mass 
of  technical  learning.  The  older  English  land  law  was  indeed  as 
intricate  and  elaborately  artificial  a  body  of  rules  as  the  world 
has  ever  seen.  .  .  . 

English  freedom  in  the  particular  legal  form  it  took,  sprang  out 
of  feudal  conditions.  In  reality,  it  was  older  than  feudality,  and 
had  lost  some  of  its  simple  Teutonic  breadth  when  overgrown  by 
feudal  notions.  But  the  structure  of  parliament  and  the  right  of 
parliament  alone  to  impose  taxes  sprang  out  of  the  relation  of  the 
King  (as  feudal  lord)  to  his  tenants,  which  is  in  a  certain  sense  a 
private  relation  as  well  as  a  political  one.  It  is  hardly  too  much  to 
say  that  what  we  call  the  public  or  constitutional  law  of  England 
is  a  part  of,  as  it  has  certainly  grown  out  of  the  private  law.  .  .  . 

I  have  referred  to  exactitude  of  thought  and  expression  as  one  of 
the  excellences  which  we  justly  admire  in  the  sages  of  the  Common 
Law,  and  particularly  in  the  deliverances  of  the  judges.  That 
exactitude  has  become  a  feature  of  all  our  legal  thinking  and  legal 
writing,  and  has  in  particular  made  us  separate  more  clearly  than 
the  lawyers  of  some  other  nations  do,  strictly  legal  considerations 
from  those  which  belong  to  the  sphere  of  morality  or  sentiment. 
We  owe  it  in  no  small  measure  to  the  old  system  of  pleading  which, 
slowly  matured  and  refined  to  a  perhaps  excessive  point  of  techni- 
cality, gave  to  the  intellects  of  many  generations  of  lawyers  a  very 
sharp  edge.  That  system  had  the  great  merit  of  impressing  upon 
them  the  need  for  distinguishing  issues  of  law  from  issues  of  fact. 


On  no  feature  of  the  Common  Law  did  your  ancestors  lay  more 
stress  than  on  the  jury,  and  the  right  of  every  citizen  to  be  tried 
by  his  peers.  This  right  had  been  a  bulwark  of  English  freedom, 
and  was  deemed  in  the  eighteenth  century  to  be  essential  thereto. 
Yet  it  deserves  to  be  noticed  that  the  jury  was  an  institution 
which,  in  the  form  familiar  to  us,  arose  almost  by  accident.  The 
legal  genius,  or  instinct,  of  the  mediaeval  English  may,  however, 
be  credited  with  the  use  they  made  of  this  accident.  Darwin  has 
shown  how  a  variation  from  a  type  which  in  its  origin  is  acci- 
dental, that  is  to  say,  due  to  some  cause  operative  in  an  individual 
organism  which  is  beyond  our  power  of  inquiry,  may  become  the 
source  of  a  new  type  possessing  advantages  which  enable  it  to 


376  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

survive  and  prevail  and  reach  a  higher  level  of  efficiency  than  the 
original  type  possessed.  So  it  may  be  not  too  fanciful  to  suggest 
that  where  a  political  or  legal  germ  happens  to  fall  in  a  fertile  soil 
the  virtue  of  the  soil  enables  it  to  spring  up  and  become  the  parent 
of  a  flourishing  progeny.  Our  ancestors  moulded  the  jury  into 
an  instrument  serviceable  not  only  for  discerning  the  truth  but 
for  securing  freedom  and  justice,  freedom  because  it  was  practi- 
cally independent  of  royal  power,  justice  because,  although  it 
was  sometimes  intimidated,  occasionally  even  corrupted,  it  was 
usually  less  liable  to  be  tampered  with  by  those  malign  influences 
which  might  poison  the  mind  or  pervert  the  action  of  a  judge 
in  days  when  public  opinion  was  ill-formed  or  weak.  .  .  . 


§  3.  The  Geographical  Factor  in  the  Common  Law.  I  have 
kept  to  the  last  the  most  striking  of  all  the  historical  conditions 
which  determined  the  character  of  Anglo-American  law.  Eng- 
land was  an  island.  The  influences  which  governed  the  develop- 
ment of  law  in  the  European  mainland  reached  her  in  an  attenuated 
form.  The  English  people  had  the  chance  of  making  a  new  start 
and  of  creating  a  system  of  law  for  themselves,  instead  of  merely 
adopting  or  adapting  the  Roman  jurisprudence,  as  did,  at  various 
times  and  in  diverse  ways,  the  French,  the  Spaniards,  the  Ger- 
mans, and  (ultimately  and  indirectly)  nearly  all  modern  peoples 
except  those  of  English  stock.  We  must  not  indeed  exaggerate 
the  originality  of  our  law.  It  is  not  as  original  as  that  of  Iceland 
would  probably  have  been,  had  Iceland  gone  on  developing  the 
legal  customs  she  had  formed  by  the  middle  of  the  thirteenth 
century.  It  is  not  original  in  the  sense  of  owing  little  or  nothing 
to  foreign  sources,  for  a  great  deal  of  law  flowed  from  Roman 
fountains  into  the  English  stream.  When  the  Lombard  Vacarius 
taught  the  Roman  Law  in  the  reign  of  King  Stephen  at  Oxford  — 
this  is  among  the  very  first  traces  we  have  of  that  famous  uni- 
versity —  we  cannot  suppose  that  his  hearers  were  confined  to 
those  who  wished  to  practice  in  the  ecclesiastical  courts.  In 
the  next  century  we  find  Bracton,  one  of  our  earliest  legal  writers, 
copying  freely  from  the  Roman  law  books,  though  he  frequently 
also  contradicts  them  when  English  usage  differed.  In  the  four- 
teenth and  fifteenth  centuries  the  ecclesiastical  chancellors  who 
built  up  the  system  of  Equity,  were  much  influenced  by  Roman 
legal  doctrines,  drawn  largely  through  canonist  channels.  Still 
the  fact  remains  that  the  law  of  England  was  a  new  creation,  not 


Chap.   XIII.]      RACE  AND   ENVIRONMENT   AND   THE  COMMON   LAW       377 

an  adaptation  of  the  law  of  the  Empire.  It  has  a  character  and 
a  quality  which  are  all  its  own ;  and  its  free  spirit  and  tendencies 
have  always  stood  out  in  marked  contrast  to  the  despotic  spirit 
and  tendencies  which  France,  Spain,  and  Germany  inherited  from 
the  imperial  jurisprudence.  To  that  jurisprudence  it  was,  during 
the  Middle  Ages  and  the  centuries  that  followed,  as  much  superior 
in  respect  for  freedom  and  in  what  may  be  called  a  popular  flavor 
as  it  was  inferior  in  the  philosophic  breadth  and  elegance  of  the 
ancient  sources  on  which  that  imperial  jurisprudence  was  founded. 
The  use  of  the  jury,  the  far  larger  place  assigned  to  oral  evidence, 
the  sharper  separation  of  issues  of  law  from  issues  of  fact  are  among 
the  most  salient  points  in  which  its  distinctive  and  individual 
quality  appears.  .  .  . 


E.— RELIGIOUS   FACTORS! 

Chapter  XIV 

THE  INFLUENCE  OF  RELIGION  UPON  LAW 
AS  ILLUSTRATED  BY  THE  IDEA  OF  PROPERTY 


§  1.  Religion  Leads  to  the  Idea 
of  Property. 

§  2.  Origin  of  the  Idea  of  Property 
in  Death  and  Sacrifices. 

§  3.  The  Deity  Considered  as  the 
Principal  Source  of  Prop- 
erty. 


§4. 
§5. 


7. 


Religious  Origin  of  Tribute. 

Religion  Evokes  the  First  Eth- 
ical Considera.tions  in  Prop- 
erty Institutions. 

The  Influence  of  Religion  on 
the  Law  of  Inheritance. 

Conclusion. 


§  1.  Religion  Leads  to  the  Idea  of  Property.  The  concept  of 
property  which  in  primeval  times  is  hazy  and  confused  first  begins 
to  take  on  a  definite  form  in  State  life.  Religion  prepares  the  way 
for  the  idea  and  especially  for  its  adoption.  It  is  religion  which 
induces  man  under  the  influence  of  a  feeling  of  his  dependence 
upon  powers  beyond  the  world  to  submit  to  authority  as  the  most 
essential  precondition  of  State  and  ownership,  and  which  incul- 
cates the  idea  of  law.  The  operation  of  religion,  however,  does 
not  restrict  itself  in  its  influence  on  property  to  a  preparatory 
function  antedating  State  organization ;  since,  in  the  view  of  the 
ancients,  all  law  is  of  religious  origin,  and  established  by  the  gods. 
Religion  long  remained  a  contributing  force  in  the  making  of  laws, 
and  its  power  still  c6ntinues. 

The  legal  procedure  of  all  peoples  has  a  sacral  character  in  primitive 
ages.^    The  Vedic  Aryans  in  particular  stressed  the  divine  origin  of  law. 

1  [For  other  statements  showing  the  early  dependence  of  law  upon  re- 
ligion, see  in  this  Series  Vol.  I,  chs.  v,  xiii  (sec.  3),  xvii  (sec.  2),  xxi  (sec.  1), 
xxvii  (sec.  1),  xxx  (sec.  2),  xxi  (sec.  2,  4,  5).] 

2  [By  LuDWiG  Felix.  This  translation  is  Chapter  I  (omitting  sec- 
tions 4-10)  of  the  author's  "Der  Einfluss  der  Religion  auf  die  Entwicklung 
des  Eigenthums",  being  the  third  part  of  his  "Entwicklungsgesehichte 
des  Eigenthums  unter  culturgeschichtlichem  und  wirtschaftlichem 
Gesichtspunkte",  Leipzig,  Duncker  and  Humblot,  1889.  The  transla- 
tion is  by  Albert  Kocourek.] 

3  Felix  Dahn,  "  Urgeschichte  der  germanischen  und  romanischen 
Volker",  1881,  Bd.  I,  p.  4. 

378 


Chap.   XIV.]       THE   INFLUENCE   OF   RELIGION   UPON   LAW  379 

Thy  throne  by  law  maintained, 
Through  law  art  thou  attained. 

With  these  words  they  hailed  Mitra-Varuna.^  According  to  Homer, 
Zeus  himself  at  Dodona  made  laws  (gave  counsel)  2;  from  him,  ac- 
cording to  legend,  Minos  of  Crete  learned  law  and  ordinance.  Belief 
in  a  divine  origin  of  the  State  and  of  law  is  evident  long  after  the 
beginning  of  the  historical  period.  Herodotus  ^  relates  of  Lycurgus 
that  Pythia  at  Delphi  instructed  him  in  the  lawmaking  which  he 
carried  out  in  Sparta.^  When  Xenophon  ^  proposed  to  increase  the 
taxes  and  to  make  a  qhange  in  the  laws  he  sent  to  Dodona  and  to 
Delphi  to  inquire  of  tlie  gods  if  they  approved  his  measures.  In  a 
similar  way,  Plato  regards  it  as  self-evident  that  when  changes  appear 
desirable  in  thelaws,  the  oracles  must  be  consulted.^  This  accounts 
for  the  long-continued  legislative  authority  of  the  Delphic  oracle. 
Cicero  denominates  religion  as  the  fixed  basis  of  the  Roman  State, '^ 
and  expresses  the  conviction  that  that  State  was  far  more  governed 
by  the  power  and  the  help  of  the  gods  than  by  human  insight.^  No 
international  agreement  and  no  alliance  was  made  without  invocation 
of  the  gods  ;  ^  for  no  important  act  of  government,  according  to 
ancient  public  law  in  Rome,  could  be  carried  out  unless  it  had  first 
been  sanctioned  by  divine  approval.^^  The  limitation  of  the  rights 
and  powers  of  the  plebeians  had  a  religious  origin;  as  opposed  to 
them,  the  patricians  in  the  beginning  constituted  an  exclusive  priestly 
order;  the  patricians  alone  were  the  administrators  of  holy  things; 
they  alone  had  the  auspices  under  which  all  the  matters  of  war  and 
peace  were  to  be  executed  ^^ ;  for  which  reason,  for  example,  it  was  re- 
garded as  sinful  that  a  plebeian  should  be  invested  with  public  office.  ^^ 
According  to  a  Frisian  legend,  the  laws  of  the  Frisians  were  bestowed 
by  a  god,^^  which  accords  with  the  idea  of  the  Germanic  tribes  that 
law  is  attributable  to  God,  and  is  even  identified  with  him.^"* 

In  association  with  these  ideas  are  the  divine  honor  given  to  oriental 
rulers,  and  the  attribution  of  divine  origin  of  the  kings  among  the 

1  R.  v.,  V,  72,  2;  cf.  1,  2,  8;  23,  5;  151,  4;  152,  1.3.  V,  67,  4;  68,  1.4. 
VI,  8,  2;  51,  2-3.  X,  133,  6. 

2  "Odyss.",  X.IX,  296;   cf.  SophocL,  **(Edipus   Rex",  847,  seq.,  "An- 
tigone", 448,  seq. 

3  I,  65. 

*Cf.  PluL,  "Lycurg.",  5. 

5  "De  Vectigal.",  6. 

6  "Laws",  VI,  15;  "Repub.",  IV,  5. 

7  "DeNat.  Deor.",  111,2. 

8  "Pro  Caj.  Rabir.",  2. 

«  Liv.,  I,  24;  III,  25;  IX,  5;  XXX,  42. 

^°  Cf.   Otto   Gierke,    "Das   deutsche   Genossenschaftsrecht",   Bd.    Ill, 
p.  62. 

"  Liv.,  VI,  41. 

12  Liv.,  IV,  3;  cf.  Liv.,  IV,  2,  6;  V,  14;  X,  6,  8. 

"  Brunner,  "Deutsche  Rechtsgesehichte",  Leipzig,  1887,  Bd.  I,  p.  109. 

"  Gierke,  op.  cit.,  Bd.  II,  p.  129. 


380  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

Aryan  peoples  of  ancient  times,  and,  also,  even  as  late  as  the  Mero- 
vingians.^ Even  as  late  as  the  year  1626  it  was  recited  in  a  state  paper 
composed  by  the  Bishop  of  Chartres,  and  ratified  by  the  Paris  Parle- 
ment,  "  the  kings  are  gods,  not  by  nature,  but  through  grace ;  the 
life  and  death  of  every  subject  lies  in  their  hand;  even  when  they 
take  away  our  property,  and  our  liberty,  and  bring  the  greatest  evil 
upon  their  people,  blind  obedience  is  a  holy  duty."  ^  Later,  in  a 
similar  vein,  says  Bossuet  in  his  "Politique  tiree  de  I'Ecriture  sainte," 
"  .  .  .  Le  prince  ne  doit  rendre  compte  a  personne  de  ce  qu'il  ordonne 
.  .  .  O  rois,  vous  etes  des  dieux,  c'est-a-dire,  vous  avez  dans  votre 
autorite,  vous  portez  sur  votre  front  un  caractere  divin.  .  .  .  "  ^  Ac- 
cording to  later  Chinese  law  a  conspiracy  against  the  emperor,  the 
earthly  representative  of  God,  is  punished  as  a  disturbance  of  the 
peace  of  the  world;  and  acts  which  threaten  the  safety  of  his  holy 
person  are  repressed  as  sacrilegious.^ 

We  may  recall  that  among  the  Jews  in  ancient  times  all  law  was  a 
law  of  God,  and  that  until  late  in  the  Middle  Ages  the  Christian  law 
was  impregnated  with  religious  ideas;  since  the  Church  derived  all 
earthly  law  and  all  mundane  power  from  a  divine  source,  and  regarded 
kings  as  representatives  here  below  of  God,  holding  in  tenure  to  divine 
power.  ^ 

Among  the  Indians,  the  view  that  all  law  is  a  ritual  still  remains, 
and  the  same  is  true  of  the  followers  of  Islam,  who  regard  all  law  as 
divine  revelation,  and  honor  the  Koran  as  a  code. 

§  2.  Origin  of  the  Idea  of  Property  in  Death  and  Sacrifices. 
The  concept  of  property  seems  to  have  originated  among  most 
of  the  primitive  peoples  in  the  fact  of  death ;  since  among  nearly 
all  of  such  peoples  either  all,  or  the  most  valuable  of  the  chattels 
possessed  by  the  dead,  whether  animate  or  inanimate,  were  given 
to  his  grave  —  a  custom  not  so  strange  in  view  of  the  improvidence 
and  total  lack  of  foresight  of  these  children  races.  The  observa- 
tion of  Strabo  ^  of  the  Albanians  that  in  default  _  of  a-paternal 
inheritance,  they  HveTiTprovefty,  since  they  bury  with  the  dead 
all  the  goods  which  he  possessed,  is  applicable  to  the  bulk  of 
primitive  peoples. 

Many  of  them  even  go  farther.  Bancroft  relates  of  the  Indians 
of  the  Rocky  Mountains,  that  they  not  only  bury  with  the  dead 

1  R.  Schroder,  "Deutsche  Rechtsgeschichte",  p.  110. 

2  7.  V.  Dollinger,  "  Akademische  Vortrage",  Nordlingen,  1888,  Bd.  I, 
p.  275. 

3  Alfred  Ramhaud,  "Histoire  de  la  civilisation  frangaise",  2ieme  ed., 
Paris,  1885-88,  t.  II,  p.  2. 

4  Post,  "Die  Grimdlagen  des  Rechts",  pp.  366-367.  • 
6  Cf.  Gierke,  op.  cit.,  I,  146. 

«  XI.  4. 


Chap.   XIV.]       THE   INFLUENCE   OF   RELIGION   UPON   LAW  381 

his  own  possessions  but  also  those  of  his  nearest  relatives  who 
thereby  are  reduced  to  misery.  The  customary  fasting  days 
after  the  death  of  a  member  of  the  family  are  explainable  as 
bitter  necessity.^  The  ancient  Scandinavians  exhibit  a  stage  of 
progress  —  only  the  goods  acquire^HBy  tTie  deceased  in  his  lifetime, 
and  not  the  goods  inherited,  may  accompany  him  2;  from  which 
it  appears  that  the  family  had  a  claim  of  ownership  with  the  head 
of  the  family. 

In  graves,  especially,  dating  from  ancient  times,  in  the  Orient, 
there  have  been  found,  among  other  things,  great  quantities  of  gold 
ornaments.  The  Arabians  buried  with  the  dead  their  camels,  so 
that  they  might  ride  on  the  side  beyond.^  Among  the  Vikings,  it 
even  occurred  that  their  ships  were  buried  with  them.  In  Christiania 
two  Viking  ships  are  exhibited,  dug  from  graves.  In  Madagascar, 
at  one  time,  there  was  little  money  in  circulation,  because  the  greater 
part  of  it  had  been  buried  with  the  dead."^ 

It  is  in  the  same  view  that  on  the  death  of  chieftains  their  huts, 
even  entire  villages  in  which  they  had  lived,  are  often  destroyed, 
and  that  their  treasure  chests  are  placed  in  their  graves.^  Such 
customs  are  also  found  among  peoples  of  higher  culture.  After  the 
death  of  an  Inca  his  successor  had  to  build  a  new  palace ;  he  could 
not  use  the  old  one,  and  he  was  obliged  to  allow  to  remain  for  the 
deceased  in  his  palace  everything  left,  and  especially  the  treasure.^ 

In  Polynesia  a  large  plot  of  ground  very  often  was  set  apart  j  ^ 
for  the^  deceased.  This  field  with  all  its  fruits,  as  well  as  all  the 
animals  on  the  land,  was  in  the  exclusive  possession  of  the  dead 
man  —  presumably  the  first  instance  of  permanent  possession  of 
land  ^  —  and  was  devoted  or  consecrated  to  him.  Lippert  is  of 
the  opinion  that  it  was  by  this  consecration,  the  as  yet  indefinite 
idea  of  personal  possession  among  primitive  peoples,  and  its  inherent 
inviolability,  was  expressed.^ 

Another  form  of  renunciation  in  favor  of  the  dead,  sometimes 
connected  with  those  described,  is  the  sacrificial  offering  dis- 
covered especially  among  all  children  races.^    On  the  death  of  a 

^  Spencer,  "Principles  of  Sociology",  I,  pp.  285-286. 

2  E.  J.  Geijer,  "Geschichte  Schwedens",  Bd.  I,  p.  103. 

3  R.  Dozy,  "Essai  sur  I'histoire  de  I'lslamisme",  Paris,  1879,  p.  12. 

*  Waitz,  "Anthropologie  der  Naturvolker",  Bd.  II,  p.  436. 

5  Julius  Livveri,  "Allgemeine  Geschichte  des  Priesterthums",  Berlin, 
1883-84,  Bd.  I,  p.  80. 

*  Baslian,  "Der  Mensch  in  der  Geschichte",  Bd.  I,  p.  275. 

7  Lippert,  "Culturgeschiehte",  Berlin,  1886-87,  Bd.  II,  p.  599. 

8  Op.  cit.,  Bd.  I,  p.  117;  Bd.  II,  p.  237. 

»  Cf.  "lUad",  XXIII,  166,  seq.;  "Odyss.",  I,  292;  III,  285. 


382  FACTORS   OF    LEGAL   EVOLUTION  [Paut   II. 

Toda  all  his  herds  were  sacrificed,  whereby  his  widow  and  his 
children  were  reduced  to  want.^  The  Egyptians  and  the  Peru- 
vians carried  these  offerings  to  such  an  extreme  that  we  may  say 
that  the  living  were  enslaved  by  the  dead.^ 

The  universality  of  these  obsequies  had  led  many  investigators 
to  the  opinion  that  these  ceremonies  were  the  first  cult,  the  origin 
of  religion,  and  that  the  temple  often  arose  out  of  the  grave.^ 

Sacrifices,  whether  made  to  the  dead  or  to  the  gods,  are  the  first 
occasion  which  present  to  primitive  races  the  idea  of  a  recurring, 
regular,  and  voluntary  abandonment  and  division  of  property. 
In  so  far  as  material  things  were  consecrated  to  the  gods,  and 
withdrawn  from  human  control,  the  idea  of  ownership  became 
apparent. 

§  3.  The  Deity  Considered  as  the  Principal  Source  of  Property. 
Sacrifices  have  another  point  of  connection  with  these  ideas. 
Next  to  the  purpose  of  securing  defense  against  hostile  powers, 
the  chief  object  of  sacrifices,  especially  among  primitive  peoples, 
was  to  require  of  the  gods  the  bestowal  of  valuable  benefits.  The 
gods,  therefore,  were  originally  not  only  the  source  of  law,  but, 
also,  in  particular,  the  chief  fountain  of  property.  The  thank- 
offering  belongs  to  a  higher  stage  of  development.  The  pertinent 
observation  of  Leist^  that  the  basis  of  divine  worship  in  the 
Vedic  world  rested  essentially  on  the  formula  ''do  ut  des  ",  ap- 
plies, as  we  shall  see,  not  only  for  all  primitive  peoples,  but  also  for 
peoples  of  higher  development. 

In  most  of  the  hymns  of  the  Rig  Veda,  the  gods  are  implored  with 
gifts  to  bestow  wealth  in  cattle,  and  since  the  benefits  awarded  by 
the  gods  are  always  in  proportion  to  the  offerings  to  them,  the  rich, 
as  is  self-evident,  are  preferred.  To  him  who  has,  there  shall  be  given, 
is  the  rule.^  Numerous  hymns  charge  the  irreligious  primitive  in- 
habitants with  miserly  neglect  in  the  matter  of  offerings  to  the  divinity, 
and  in  this  is  found  sufficient  ground  for  dispossessing  the  unbelievers 
of  the  goods  which  do  not  benefit  the  gods,  in  favor  of  the  heaven- 
born.^  Acquisition  of  land  as  well  as  chattels  by  war  has  its  sole  jus- 
tification as  the  gift  awarded  to  the  conqueror  protected  by  the  gods, 
especially  Indra  ^  —  a  view  in  accord  with  that  of  the  Greeks  and  the 

1  Spencer,  op.  cit.,  I,  p.  285. 

2  Spencer,  "Ecclesiastical  Institutions",  London,  1885,  p.  820. 
^Spencer,  "Ecc.  Inst.",  pp.  675,  680;  Fustel  de  Coulanges,  "La  cite 

antique",  3d  ed.,  Paris,  1870,  pp.  16-19;  Dozy,  op.  cit.,  411. 

''  Leist,  "  Graeco-italische  Rechtsgeschichte",  Jena,  1884,  p.  197. 

6  R.  v.,  VII,  1,  17;  38,  2;  58,  6;  67,  9. 
«  R.  v.,  VII,  19,  1. 

7  Leist,  op.  cit.,  p.  435.     [Note  4  supra.] 


ClL\P.    XIV.]       THE   INFLUENCE   OF   RELIGION    UPON    LAW  383 

Latins.^  Success  in  battle  by  the  Romans  in  particular  followed 
divine  approval. ^  The  East  Iranians  offered  prayers  to  Mithra  not 
only  for  power,  welfare,  and  success  in  battle,  but  also  for  horses, 
cattle,  and  abundance.^  In  Homer,  also,  the  gods  are  represented  as 
the  dispensers  of  riches.'* 

In  an  Egyptian  book  supposed  to  date  from  the  Middle  Empire, 
man  is  warned  against  pride  of  possession  of  earthly  goods,  because 
they  come  from  the  gods  without  man's  effort.^  In  Egypt,  Seb  was 
the  giver  of  all  fruits,®  in  Arabia  Baal  of  Sinai  was  dispenser  of  fruit 
and  water  in  the  desert  ^  ;  and  in  ancient  Babylonia  Marduk  was  the 
donor  of  abundance.^  The  Phenicians  regarded  themselves  as  the 
property  of  Baal,^  an  idea  expressed  in  the  name  of  this  god.^°  In 
the  mythology  of  the  northland,  Odin  is  the  portioner  of  all  material 
and  spiritual  possessions.^^ 

But  the  same  idea  dominates  also  in  the  height  of  classical  antiquity. 
Xenophon  ^^  and  Pausanias  ^^  speak  of  the  gods  as  the  dispensers  of  all 
goods.  Plato  says  that  the  whole  world,^^  and  in  Phaedo,  especially, 
that  mankind  are  the  property  of  the  gods.  According  to  Isaeus,^^ 
Zeus  Ktesion  was  revered  as  the  supporter  and  multiplier  of  possessions. 
Euripides  denies  to  mankind  all  property  rights,  and  considers  man 
only  as  the  administrator  of  the  gods  who  at  will  can  take  back  their 
own.^®  The  Romans  regarded  Jupiter  as  the  giver  of  all  things.^^ 
Their  piety  was  based  on  a  sort  of  contractual  relation  with  the 
gods  whose  good-will  was  maintained  by  offerings ;  for  which  reason, 
riches  was  regarded  in  a  higher  degree  than  among  the  Vedic  Aryans, 
the  l;)enevolence  of  the  gods. 

The  Old  Testament  decisively  represents  God  as  the  owner  of  the 
whole  world. ^*  God  promised  that  Abraham's  descendants  should 
have  Palestine.^^  Still  they  were  to  be  only  executors  or  usufructu- 
aries of  the  land,  since  transfers  could  be  made  to  be  effective  only 
for  a  limited  period.     It  is  frequently  said  that  everything  comes 

1  Leist,  op.  cit.,  455. 

2  Liv.,  V,  27;  cf.  Machiavclli,  "Discorsi",  I,  14. 

3  Duncker,  "Geschichte  des  Alterthums",  Bd.  IV,  pp.  81,  83. 

4  "Iliad",  II,  670;  XIV,  491;  "Odyss.",  XVIII,  19. 

5  Erman,  "Aegypten",  Tubingen,  1885,  Bd.  I,  237  [also  an  Enghsh 
translation]. 

8  Duncker,  op.  cit.,  Bd.  I,  44.  '  Op.  cit.,  244. 

*  Hommel,  "Geschiehte  Babyloniens  und  Assyrians ",  Berlin,  1885, 
p.  410. 

9  F.  C.  Movers,  "Die  Phonnizier",  Bd.  I,  363. 

10  Ibid.,  171. 

11  L.  S.  P.  Meyboom,  "De  Godsdienst  der  oude  Noormannen",  Haarlem, 
1886,  pp.  264-265. 

«  "De  Vectieral.",  1.  "  VTII,  36. 

"  "Laws",  X,  11.  »  "De  Hered.  Ciron." 

»«"Phoeniss.",  548.  "Cicero,  "Pro  Sext.  Rose",  45. 

"  Gen.,  XIV,  22;  Ex.,  xix,  5;  Levit.,  xxv,  23;  Deut.,  x,  14. 
"  Gen.,  XII,  7;  xiii,  15;  xv,  7,  18:  xvii,28;  xxvi,  3;  xxviii,  13;  xxxv, 
12;  Deut.,  i,  8;  vi,  10;  xxxii,  8;  Joshua,  i. 


384  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

from  God  ^ ;  that  God's  blessing  alone  produces  riches,  and  not  man's 
power.  2 

Divine  origin  of  possession  is  also  recognized  by  other  peoples.^ 
This  view  passed  over  also  into  Christianity.^  The  Germans  looked 
upon  their  marches  as  held  in  tenure  ^  from  God  of  whom  they  were 
confederates.  The  pope  as  the  representative  of  God  considered 
himself  invested  with  power  to  regulate  all  ownership.^  The  Koran, 
also,  derives  all  ownership  from  God,  and  the  Caliph,  as  his  repre- 
sentative on  earth,  is  empowered  to  govern  all  the  property  concerns 
of  his  subjects,  and,  especially,  those  relating  to  land. 

§  4.  Religious  Origin  of  Tribute.  The  origin  not  only  of  all 
authority  and  of  all  law  is  to  be  found  in  religion,  but  also  of 
consent  to  alienation  of  ownership  in  the  things  necessary  to  the 
existence  of  the  State.  How  difficult  it  is  for  some  men  to  relin- 
quish possession  without  the  giving  of  a  tangible  equivalent  is 
well  known ;  but  alienations  in  favor  of  the  gods  on  the  grounds 
already  explained  are  early  observable  among  all  peoples.  Tribute, 
as  a  species  of  offerings,  may  be  regarded  as  an  original  idea,  and 
this  with  the  greater  justification  that  in  the  beginning,  it  was 
paid  voluntarily  as  an  offering,^  which  custom  persisted  even  up 
to  the  time  of  the  Frankish  kings. 

Offerings  to  the  gojds  are  also  expressly  denominated  tribute. 
Thus  it  is  said  of^>din  that  the  people  in  order  to  succeed  with 
their  harvests  made  contributions  to  him.^  The  tithe  custom, 
found  among  various  peoples,  is  to  be  regarded  as  a  tribute  paid  to 
the  gcds.  Pliny  relates  that  at  Shibam  where  the  frankincense 
was  collected,  it  could  not  be  sold  until  a  tenth  had  been  contrib- 
uted to  the  god,  which  was  in  part  used  for  the  settlement  of  public 
expenses.  The  god  then  entertains  lavishly  the  guests  for  a 
certain  number  of  days.^  The  wealth  of  the  high  priest  of  Tyre 
was  principally  derived  from  the  tithes  paid  on  the  total  receipts 
•of  the  colonists.^^  The  Greeks  devoted  tithes  of  various  enter- 
prises  to  the  gods ;  thus  the  products  of  the  gold  and  silver  mines 
of  Siphnos  were  consecrated  to  Delphi.^^    The  Samians  contrib- 

1  Psalms,  CIV. 

2  Prov.,  X,  22;  Deut.,  viii,  17-18. 
^Richter,  11,  24. 

4  Corinth.,  i,  10,  26;  Timothy,  vi,  17. 

5  Gierke,  op.  cit.,  II,  168;  cf.  GHmm,  "Weisthiimer",  II,  492, 

8  [Treated  in  detail  in  the  original  work,  but  omitted  in  this  translation.] 

7  Cf.  Herod.,  Ill,  89;   Tacit.,  "German.",  15. 

8  Geijer,  op.  cit.,  100  [v.  note  2,  p.  381  supra]. 
^Plin.,  "N.  H."  XII,  32. 

10  Diodor.,  XX,  14. 

"  Herod.,  Ill,  57;  Pausan.,  X,  11. 


Chap.   XIV.]       THE   IXFLUENCE   OF   RELIGION   UPON    LAW  385 

uted  a  tenth  part  of  their  gains  from  a  sea  voyage  to  Libya,  to 
Hera.^ 

Hiillmann  is  of  opinion  that  the  toll  duty,  at  least  the  passage 
toll  and  the  ingress  toll,  originally  a  tenth,  was  the  most  ancient 
tariff  and  that  it  was  at  first  reckoned  in  kind  and  later  in  money .^ 
Even  as  late  as  the  time  of  Lucullus  many  Romans  were  accus- 
tomed to  tithe  Jupiter  for  their  possessions.^  The  Wendish  inhab- 
itants on  the  island  of  Riigen  were  obligated  to  make  contributions 
to  the  temple  at  Arkona.  Levies  of  market  tolls  on  tradesmen 
were  made  not  by  the  king  but  by  the  temple."*  It  was  the  view 
of  the  Qermanic  races  that  the  dispensing  gods  of  bounty  were 
entitled  to  a  portion  of  meat  and  drink,  of  harvests,  of  captured 
game,  and  the  first-born  of  cattle.  This  idea  in  connection  with 
the  Mosaic  command  of  tithes  was  utilized  by  the  Church,  and 
many  other  forms  of  offering  were  fused  into  this  custom. 


In  Rome  the  levying  of  taxes  was  connected  with  the  lustrum. 
After  the  fixing  of  the  tax,  followed  the  atonement  of  the  army 
by  the  sacrifice  of  a  bullock,  a  pig,  and  a  sheep.^  The  same  as- 
sociation of  ideas  is  found  in  ancient  Hebrew  times  —  when  the 
host  was  reviewed,  each  man  capable  of  bearing  arms  was  assessed 
half  a  shekel.^ 

It  is  expressly  attested  of  Sweden  that  the  taxes  in  part  were 
derived  from  contributions  for  the  maintenance  of  the  ancient 
offerings  which  originally  were  voluntary  but  which  gradually 
assumed  the  nature  of  fixed  imposts.^  History  shows  that  taxa- 
tion often  has  been  abolished  after  the  system  had  lost  its  original 
meaning.  The  State  took  the  place  of  the  priesthood  for  whose 
benefit  these  contributions  at  first  were  made.  That  the  transi- 
tion was  one  of  difficulty  is  shown  by  the  complaint  of  King  Gustav 
Wasa  that  the  taxes  from  tithes  had  decreased  since  the  greater 
part  no  longer  went  to  the  Church  but  to  the  crown.^ 

The  connection  between  taxation  and  religion  is  indicated  also 
by  the  fact  already  noticed,  that  the  chieftains  of  ancient  societies 

1  Herod.,  IV,  152. 

2  "Urspriinge  der  Besteuerung",  Koln,  1818,  p.  45;  cf.  Demosth. 
"Adv.  Sept.",  475,  "Adv.  Aristocr.",  679. 

3  Diodor.,  IV,  21. 

*  Lippert,  "Allg.  Gesch.  d.  Priesterthums",  II,  591. 
5  Dion.  Halic,  IV,  22. 


^  Exod.,  XXX,  12  seq. 
op.  cil.,  Bd. 
^  Ihid.,  Bd.  II.  115 


7  Geijer,  op.  cil.,  Bd.  I,  166,  280  [note  2,  p.  381  supra]. 


386  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

were  regarded  as  gods  and  received  divine  honors.  On  this 
ground  alone  can  be  understood  the  submissiveness  with  which 
the  wildest  excesses  in  these  matters,  of  despotic  chieftains  and 
other  divinely  honored  leaders,  were  indulged.  The  power  of  the 
Cazik  in  Haiti  was  found  by  explorers  to  rest  on  religious  ideas. 
The  Cazik  was  the  sole  owner  of  the  crops  and  he  provided  for 
each  one's  necessities  in  a  socialistic  fashion  out  of  the  supplies 
of  his  storehouses.^  Under  this  system  it  was  of  course  possible 
to  regulate  distribution  for  the  common  good.  In  Polynesia  also 
the  people  submitted  to  burdens  and  exactions  because  of  their 
belief  in  the  divinity  of  their  leaders.^  The  same  is  true  of  Mexico, 
Peru,  Guatemala,  and  of  most  of  the  oriental  empires,  where  the 
theocratic  tendency  is  unmistakable. 

We  may  here  recall  the  words  of  the  Apostle  Paul  that  the  power 
of  tax^-tion  rests^with  the  magistracy  on  account  of  its  divine 
origin  —  "  Let  every  soul  be  subject  unto  the  higher  powers ! 
For  there  is  no  power  but  of  God ;  the  powers  that  be  are  ordained 
of  God."  ^  ''  For,  for  this  cause  pay  ye  tribute  also ;  for  they  are 
God's  ministers  attending  continually  upon  this  very  thing."  ^ 
Thus  are  religion  and  law  not  only  originally  united,  but  eyen 
today  they  still  remain  united  in  many  States  in  the  person  of  the 
ruler  —  as  in  China  and  in  Islam. 

Next  to  the  divinity  ascribed  to  kings,  the  influence  of  the 
priesthood  is  to  be  put  down  as  the  source  of  the  institution  of 
taxation.  Even  so  warlike  a  people,  a  people  so  animated  by  self- 
assertiveness  as  the  Germanic  tribes,  willingly  submitted  to  the 
orders  of  the  priesthood  as  against  the  king. 

It  was  not  the  kings  but  the  priests  who  declared  the  will  of 
God,  that  had  jurisdiction  of  criminal  matters;^  they  alone  fixed 
the  penalties ;  ^  and  it  followed  that  they  were  able  to  mitigate 
the  hostility  of  the  people  to  taxation.^  The  corpus  juris  canonici 
vigorously  asserts  the  duty  of  paying  taxes  making  reference 
to  the  tax  penny  of  Christ.^ 


§  5.    Religion  Evokes  the  First   Ethical  Considerations  in  Prop- 
erty Institutions.     The    observation  that  with   an    increase    of 

1  Peschel,  "Geschichte  des  Zeitalters  der  Entdeckungen",  p.  192. 

2  Waitz,  op.  cit.,  Bd.  VI,  195,  658.  ^  Romans,  xiii,  1. 

"*  Romans,  xiii,  6.  ^  Tacit.,  "German.",  7,  11. 

6  Ibid.,  21.  7  ijjid,,  43. 

8  Roscher,  "Finanzwissenschaft",  p.  222. 

[At  this  point  the  author  discusses  the  Peterspenny  in  England,  taxa- 
tion in  France,  and  concludes  with  Islam.] 


Chap.   XIV.]       THE  INFLUENCE   OF   RELIGION   UPON   LAW  387 

wealth  there  is  a  decHne  of  morals  —  to  which  the  ancient  oriental 
notion  that  gold  is  afflicted  with  the  Typhonean  Curse/  is  refer- 
able —  goes  so  far  in  Buddhism  as  not  only  to  censure  an  immoral 
use  of  wealth,  but  to  assert  that  in  and  cf  itself,  it  is  an  obstruction 
to  moral  conduct,  and  the  attainment  of  wisdom.  In  one  cf  the 
Buddhistic  sutras  the  rich  are  condemned  because  in  their  folly 
they  knew  only  the  desire  of  piling  up  wealth  and  pleasures, 
instead  of  succoring  the  needy.  "  It  is  difficult  to  be  rich  and  to 
learn  the  way,"  Buddha  is  reported  to  have  said.  Therefore  he 
taught  that  man  should  deny  all  earthly  possessions,  and  should 
live  as  if  he  did  not  live.  Only  the  man  who  has  loosed  himself 
from  earthly  bonds  can  attain  the  object  of  eternal  good.  As  a 
result  of  this  teaching,  we  read  of  the  struggles  of  parents,  wives, 
and  children  to  restrain  those  eager  for  renunciation.^ 

The  Jewish  prophets  inveigh  with  great  force  against  the  ex- 
ploitation of  the  poor  by  the  rich.^  The  maledictions  against  the 
wealthy  even  take  on  a  socialistic  character  as  where  (Isaiah, 
V,  8)  the  system  of  latifundia  is  reprobated,  and,  in  many  other 
places,  where  display  is  condemned.'^  A  more  pronounced  social- 
istic tendency  is  expressed  in  a  series  of  provisions  in  favor  of  the 
poor  against  the  oppression  of  the  rich.  Thus,  in  the  Jubilee 
Year  every  man  was  to  return  to  his  possession.^  In  every  seventh 
year  the  fields,  the  vineyards,  and  the  oliveyards  were  to  rest,  in 
order  that  the  poor  of  the  people  might  eat.^  Every  seven  years, 
every  creditor  shall  release  his  neighbor  of  any  debt.'^  In  this 
connection,  also,  is  the  provision  that  when  reaping  the  harvest, 
the  gleanings  shall  be  left  for  the  poor,^  and  the  prohibition  of 
taking  interest  from  the  poor.^  A  socialistic  provision  also  is 
that  which  commands  that  upon  a  division  of  the  land,  the  meas- 
ure shall  be  the  needs  of  the  families.^^ 

The  later  JEssenes  lived  in  ascetic  communism  with  an  exclu- 
sion of  all  individual  possession,  and  they  held  no  slaves. 

The  teachings  of  Christ  instill  the  purest  renunciation  and  self- 
denial  which  involve  a  position  of  putting  aside  property,  and 
especially  riches.     The  care  of  earthly  things  leads  away  from  the 

*  Plui.,  "De  Is.  et  Os.",  30. 

2  Olde'nberg,  "Buddha",' Berlin,  1881,  pp.  66-67. 

3  Is.,  Ill,  14-15;  X,  2;  Jerem.,  xvii,  11;  Amos,  iii,  9;  v,  11-12;  viii, 
4  seq. ;  Micah,  ii,  2. 

*  Is.,  Ill,  16  seq.;  Jerem.,  x,  9-10;  Amos,  vi,  4  seq. 

^  Levit.,  XXV,  13,  28.  «  Exod.,  xxiii,  11. 

'  Deut.,  XV,  2.  8  Levit.,  xix,  9-10;  xxiii,  22. 

*  E.xod.,  XXII,  24;  Levit.,  xxv,  36-37;  Deut.,  xxiii,  20. 
"  Num.,  xxxiii,  54. 


388  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

care  of  the  soul/  and  makes  entry  difficult  into  the  heavenly 
kingdom ;  ^  for  the  rich  living  in  luxury  often  defraud  the  poor.^ 
The  laying  up  of  treasures  is  not  only  reproved/  but  it  is  often 
recommended  that  possessions  be  sold  and  the  proceeds  be  given 
to  the  poor.^  It  is  even  ordered  that  one  shall  giveup  his  prop- 
erty when  sued  on  an  unjust  claim ;  ^  and  provision  made  for 
wants  is  considered  blameworthy/ 

In  accord  with  what  is  also  the  teaching  of  Buddha,  it  is  re- 
quired that  there  be  a  renunciation  of  father,  of  mother,  of  wife, 
and  of  all  earthly  ties.^  It  is  expressly  provided  that  the  gospel  is 
preached  to  the  poor  and  to  the  unfortunate.^  ''  Come  unto  me, 
all  ye  that  labor  and  are  heavy  laden,  and  I  will  give  you  rest."  ^° 

The  magic  of  this  appeal  to  the  poor,  the  suffering,  and  the 
oppressed,  must  have  been  all  the  more  effective  on  account 
of  its  glaring  contrast  with  the  coldness  and  the  disdain  which 
the  unfortunate  encountered  in  the  heathen  world. ^^  In  classical 
ancient  times  all  kinds  of  work,  even  the  highest  forms  performed 
for  reward,  were  stigmatized  by  the  most  eminent  thinkers ;  and 
the  necessary  consequence  was  that  only  those  were  considered 
worthy  who  were  economically  independent.  This  view  also 
necessarily  led  to  a  cult  of  plutocracy.  In  decisive  contrast  are 
the  words  of  Christ  which  reechoed  throughout  the  Middle  Ages.^^ 

§  6.  The  Influence  of  Religion  on  the  Law  of  Inheritance.  Just 
as  religion  has  had  an  essential  part  in  the  origin  and  development 
of  property,  so,  also,  it  has  affected  the  right  of  inheritance.  We 
have  already  seen  that  among  primitive  peoples  the  surviving 
family  members  of  a  deceased  person  were  not  permitted  to  touch 
his  possessions,  and,  at  any  rate,  could  not  fully  appropriate 
them.  After  a  time,  the  view  came  to  prevail  that  through  suitable 
offerings  (which  did  not  involve,  as  before,  the  entire  belongings  of 

1  Matth.,  VI,  21;  vi,  24;  xiii,  22;  Mark,  iv,  19;  Luke,  xvi,  13. 

2  Matth.,  XIX,  24;  Luke,  viii,  14;  xviii,  25;  Mark,  x,  23,  25. 

3  James,  v,  4-6. 

4  Matth.,  VI,  19. 

5  Matth.,  XIX,  21 ;  Mark,  x,  21 ;  Luke,  xii,  33. 

6  Matth.,  V,  40;  Luke,  vi,  29-30. 

7  Matth.,  VI,  28,  31,  32;  Luke,  ix,  62. 

8  Matth.,  x,  37;  xix,  29;  xii,  48;  Mark,  x,  29;  Luke,  xii,  53;  xiv, 
26;  I.  Corinth.,  vii,  33. 

9  Matth.,  XV,  5;  Luke,  iv,  18;  vii,  22. 

10  Matth.,  XI,  28. 

11  CJ.  Theognis,  177  seq.;  267  seq.;  385,  649  seq. ;  Plato,  "Laws",  XI, 
4;  ArisL,  "Eth.  Nic",  I,  8,  15;  Juven.,  Ill,  37. 

12  [At  this  point  the  author  leads  his  discussion  of  the  property  idea  up 
to  modern  times  from  the  early  centuries  of  the  Christian  era.  This 
portion  is  omitted  in  this  translation.] 


Chap.   XIV.]       THE  INFLUENCE  OF  RELIGION   UPON   LAW  389 

the  dead),  and  other  ceremonies,  the  claims  of  those  departed 
would  be  satisfied.  So  much,  however,  was  indispensable,  and 
among  many  peoples  became  the  condition  of  a  right  of  inherit- 
ance. 

This  was  conspicuously  the  case  in  India  where  the  belief  was 
held,  in  common  with  most  other  peoples,  of  the  survival  of  the 
manes  of  the  dead.  According  to  the  laws  of  Manu  ^  the  father 
who  did  not  leave  a  son  to  provide  in^his  honor  the  repast  cf  the 
dead  (Sraddha)  could  not  enter  heaven.  Only  the  father  of  a 
son  could  fulfill  his  duties  toward  his  ancestors.  This  explains 
the  ardent  desire  of  the  Hindu  for  sons,  and  also  the  fact  that  in 
Indian  customary  law  nearly  all  personal  rights  and  the  rules 
governing  inheritance  were  inseparably  connected  with  the  ap- 
propriale_Qbservance  of  certain  ceremonies  of  sepulture. ^ 

If  these  ceremonies  were  not  performed  in  a  manner  prescribed, 
and  Iby  the  proper  persons,  thereunto  designated,  then  no  relation- 
ship was  recognized  between  the  deceased  and  any  living  person. 
In  such  case,  the  law  of  inheritance  did  not  have  application; 
no  one  had  a  right  of  inheritance.  In  India  the  right  of  property 
was  therefore  based  on  a  cult.  Family  offerings  in  this  way  be- 
came the  condition  of  all  personal  rights,^  which  fully  justified  the 
fundamental  rules  of  Hindu  law,  however  odd  it  seems,  that 
property  was  considered  a  means  of  defraying  the  expenses  of 
sepulture.'*  From  this  point  of  view  an  offense  against  the  right 
of  property  was  regarded  as  having  the  effect  of  diminishing  the 
ability  of  a  man's  sons  to  provide  for  his  funeral  ceremonies,  and 
was  considered  a  crime  which  the  gods  would  inevitably  punish.^ 
Maine  thinks  that  the  unfavorable  position  of  women  with  ref- 
erence to  inheritance  rights  is  due  to  the  view  of  the  priestly 
originators  of  the  institution  of  inheritance,  that  women  on  account 
of  their  physical  weakness  and  their  retired  lives  would  have  found 
greater  difficulty  than  men  in  providing  the  necessary  share  of  a 
dead  man's  property  for  his  funeral  ceremonies.® 

The  cult  of  the  dead  had  a  characteristic  meaning  in  ancient 
classic  times.  In  Hellas  the  belief  prevailed  that  a  ceremonial 
funeral  with  definite  sacrifices  was  necessary  for  the  dead  to  cross 

1  IX,  106. 

»  Maine,  "Ancient  Law",  5th  ed.,  London,  1874,  p.  7. 

3  Maine,  op.  cit.,  172. 

*  Maine,  '*  Village  Communities",  3d  ed.,  London,  1876,  p.  53. 
5  Maine,  "Village  Communities",  69. 

•  Maine,  "Lectures  on  the  Early  History  of  Institutions",  London, 
1875. 


390  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

the  boundaries  of  the  underworld.  Nothing  was  more  terrible 
than  for  the  spirit  to  wander  about  after  death  for  want  of  burial 
of  the  body.  The  spirit  of  Patroklos  implored  Achilles  to  bury 
him,  that  he  might  pass  the  gate  of  Hades.^  Polynices,  providing 
against  the  event  of  death,  made  the  same  request  of  his  sisters. ^ 
It  was  a  horrible  curse  to  die  without  burial,^  and  the  most  fear- 
ful threat  in  war,  to  leave  the  corpse  of  an  enemy  or  coward  with- 
out funeral  rites.^ 

After  the  funeral  rites,  it  was  also  necessary  to  provide  offerings 
and  pious  gifts  in  order  that  the  sad  fate  of  the  deceased  might  be 
mitigated.  We  have  adverted  already  to  the  hypothesis  that  the 
cult  of  the  dead  was  the  earliest  religion.  In  any  event,  in  Hellas, 
ancestors  also  enjoyed  divine  honors.  The  father  as  sole  ex- 
positor and  priest  of  the  religion  of  the  domestic  hearth,  alone 
could  teach  it,  and  he  could  teach  it  only  to  hi-s  son.  In  this  way 
the  household  religion  passed  from  son  to  son.^  Since  the  grave 
required  offerings,  it  was  necessary,  as  among  the  Hindus,  that  the 
male  line  be  perpetuated.  Even  in  the  time  of  the  orator  Isaeus, 
each  Athenian  took  care  to  leave  an  heir  who  would  perform  the 
duties  owing  to  his  grave,  which  accounts  for  the  numerous 
adoptions  made  by  the  childless.^  This  was  the  case  not  only  of 
individuals,  but  the  State  also  made  it  the  duty  of  the  archon  to 
see  to  it  that  no  family  was  extinguished  by  death.'^  Celibacy 
under  such  conditions,  as  is  easy  to  understand,  was  regarded  as 
a  neglect  cf  duty,  cr,  at  least,  an  indication  of  a  want  of  piety. 
Plato  positively  declares  marriage  to  be  a  sacred  duty.^ 

Since  the  duties  owing  to  the  dead  rested  alone  on  the  son,  it 
followed  that  originally  he  alone  could  inherit,  and  this  succession 
followed  without  the  need  of  a  will.  Acceptance  of  the  estate  and 
observance  of  the  cult  requirements  were  as  much  a  duty  as  a  right. 
Benefit  of  inventory  and  liberty  of  renunciation  were  not  permitted 
to  the  son  in  Greek  law,  and  did  not  obtain  in  Roman  law  until 
a  late  period.^ 

A  similar  situation  is  found  in  ancient  Rome.     The  will  which 


1  "Iliad",  XXIII,  71;  cf.  "Iliad",  XXII,  338;  "Odyss.",  XI,  72. 

2  Sophocles,  "CEdip.  in  Colonos",  1401,  1426;  cf.  "Antigone",  465,  862. 

3  Sophocles,  "Ajax",  1132. 

4  "Iliad",  II,  393;  XI,  452;  XV,  348;  XXI,  123;  XXII,  335. 

5  Fustel  de  Coulanges,  "La  cite  antique",  3i&me  ed.,  Paris,  1870,  p.  36. 

6  Isaeus,  "De  Hered.  Menecl.";  "De  Hered.  Astyphil." 
'  Isaeus,  "De  Hered.  Apollod." 

8  "Laws",  VI,  17. 

"  Fustel  de  Coulanges,  op.  cit.,  79;  cf.  Plato,  "Laws",  V,  10;  Isaeus, 
*'De  Hered.  Philoctemon." 


Chap.   XIV.]       THE   INFLUENCE  OF   RELIGION   UPON   LAW  391 

seems  to  have  originated  at  Rome  was  closely  connected  with  the 
sacra.^  As  is  well  known,  the  Roman  was  unwilling  to  die  with- 
out a  testament.  No  calamity  seemed  to  him  as  great  as  for- 
feiture cf  the  power  to  make  a  will,  and  no  curse  appeared  to  him 
more  fearful  than  that  he  might  die  without  one,^  which  feeling 
in  part  is  attributable  to  the  connection  of  the  inheritance  with 
the  performance  of  death  cult  duties.  It  was  an  obligation  laid 
upon  the  heirs  to  see  to  the  pious  devotions  in  honor  cf  the  dead.^ 

Bernhard  Stade  "*  is  of  opinion  that  in  analogy  to  Greek  and 
Roman  law,  the  agnatic  right  of  inheritance  of  the  Jews  among 
whom  originally  only  the  son  was  entitled  to  succeed,  was  based 
on  the  necessity  of  perpetuating  the  death  cult.^ 

Apart  from  these  considerations,  there  was  another  right  of 
inheritance  in  early  Hellenic  and  Roman  days  —  the  inheritance 
of  blood  revenge  duties  in  cases  of  violent  killing.^  According 
to  Ewald  ^  this  rule  prevailed  among  the  ancient  Jews.  It  ob- 
tained also  in  ancient  Nordic  times.  In  Sweden  a  son. could  only 
inherit  from  his  murdered  father  after  he  had  revenged  him.^ 

The  sentiment  of  piety  toward  the  dead,  which  strengthened, 
and  was  associated  with,  the  feeling  of  tribal  and  family  unity, 
exerted  a  wider  influence  on  the  repeated  transfer  at  death  of 
property,  in  that,  especially  among  the  (xreeks,^_it  was  regarded 
as  a  holy  duty  to  the  dead  to  pass  on  to  the  descendants  an  un- 
diminished estate.  Reflexes  of  this  view  are  found  in  the  Ger- 
manic Folk  laws.^ 

The  Koran  also  regulates  the  right  of  inheritance, ^°  although 
in  incomplete  fashion,  and  seeks  to  designate  the  approximate 

^  Maine,  "Ancient  Law",  p.  191;  cf.  Leist,  op.  cit.,  32. 

*  Maine,  op.  cit.,  218. 

'  Cicero,  "De  Leg."    II    19  21. 

*  ''Geschichte  desV'olkes  Israel",  Berlin,  1887,  Bd.  I,  pp.  391  seq. 

"  The  innovation  of  permitting  daughters  to  inherit  was  a  compromise 
with  an  older  system,  which  had  for  its  object  to  prevent  extinction  of 
the  family  —  Numbers,  xxxvi,  1  seq.  The  contrast  with  Job,  xlii,  15 
shows  the  latter  to  be  a  post-exilic  work. 

When  Stade  attempts  to  explain  the  eagerness  of  the  Jewish  mother  for 
male  children  (as  in  Gen.,  xxx,  1,  2  and  I.  Sam.,  i)  by  the  necessity  of 
perpetuating  the  death  cult,  it  seems  to  us  his  references  are  not  convinc- 
ing ;  since  Jacob  as  well  as  Elkanah  at  the  time  had  sons  by  other  wives. 
Furthermore  Rachel  speaks  of  "children"  and  not  of  "sons." 

«  Leist,  op.  cit.,  42  [note  35  supra]. 

'  "Die  Alterthumer  des  Volkes  Israel",  3te  Ausg.,  Gottingen,  1866, 
p.  225. 

8  Geijer,  "Geschichte  Schwedens",  Bd.  I,  p.  266.  See  also  ScoiCs 
novel  "The  Monastery"  (Chap.  XXVII),  where  the  same  rule  was  ob- 
served even  as  late  as  the  17th  centurv. 

9  Cf.  Wundt,  "Ethik",  Stuttgart,  1886,  p.  218. 
"  Surah  4. 


392  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

heirs  ^  by  commanding  the  making  of  wills.^  An  apostate  loses 
his  right  to  inherit.^  That  an  unbeHever  cannot  inherit  from  a 
Moslem  is  generally  accepted  by  the  Malekites  and  Hanbalites.^ 


§  7.  Conclusion.  We  have  seen  that  religion  created  the  first 
conditions  for  the  origin  of  property,  authority,  and  law ;  that  it 
was  religious  institutions  which  first  evoked  the  concept  of  prop- 
erty; and  that  the  divinity  was  originally  the  leading  source 
of  property  rights,  and  religion  the  agency  which  furnished  the 
means  necessary  to  the  existence  of  the  State.  Furthermore, 
the  earliest  ideas  of  an  ethical  nature  concerning  property  were 
derived  from  religion  which  the  legal  systems  supplemented  pro- 
gressively; and  that  the  duties  connected  by  religion  with  the 
holding  of  property  long  continued,  and  were  especially  con- 
spicuous in  the  Christian  Middle  Ages. 


1  Muller,  "Der  Islam",  Bd.  I,  p.  168. 

2  Surah  5. 

3  Pischon,  "Der  Einfluss  des  Islam",  Leipzig,  1881,  p.  59.  In  a  similar 
manner  Theodosius  decreed  that  any  one  who  gave  up  the  Christian  faith 
for  heathendom  should  lose  his  right  to  dispose  of  his  property  by  will. 

*  Pischon,  op.  cit.,  107. 


R  —  PSYCHOLOGIC   FACTORS 
Chapter  XV 

SYMPATHY   IN   GROUP   AND   INSTITUTIONAL 
SURVIVAL  1 


I.  Folk-Custom  and  Folkways. 
II.   The     Group     and     the     Indi- 
vidual. 


III.   Institutions. 


I.    Folk-CiLstom  and  Folkways 

In  the  consideration  of  behavior  in  its  gradual  progress  from 
involuntary  and  unconscious  action,  arising  out  of  physical  forces 
or  chemical' reactions,  to  the  first  beginnings  of  conscious  conduct 
actuated  by  design,  there  are  two  great  classes  into  which  we 
can  assort  acts.  The  first  being  the  product  of  natural  forces 
without  assistance  from  the  self,  submental  in  origin,  can  be 
called  natureways  and  typically  arises  from  the  contact  of  animal 
life  with  its  environment. 

The  second  great  group  of  common  human  modes  of  action 
are  acquired  instead  of  inherited,  volitional  rather  than  involun- 
tary, and  gradually  rise  out  of  subconsciousness  into  the  rational 
through  various  degrees  of  decision  or  judgment  applied  to  them 
by  the  actor.  Never  "  natural  "  and  always  "  nurtural  "  the 
title  ''  nurtureways  "  seems  not  unfitting. 

Of  these  the  most  primitive  mode  is  that  of  the  folkways.  Un- 
conscious, habitual,  uniform  modes  of  acting,  they  call  for  little  or 
no  effort  of  choice,  judgment,  or  will,  and  arise  from  the  instinc- 
tive feelings  of  hunger,  love,  vanity,  and  fear ;  acquired  by  imita- 
tion they  are  rudimentary  in  the  higher  animals,  and  reach  their 
highest  potency  in  the  smaller  and  more  primitive  groups,  such  as 
families  and  clans. 

1  [By  Edward  D.  Page. 

Reprinted  from  "Trade  Morals",  Yale  University  Press,  1914.  The 
selections  made  are  from  Chapters  IV,  V,  VI,  parts  being  omitted.  The 
compilers  have  taken  the  liberty  of  entering  new  titles  for  the  division 
heads  for  the  purposes  of  this  collection.] 

393 


394  '  FACTORS   OF    LEGAL   EVOLUTION  [Part   IL 

The  next  higher  mode  of  human  conduct  is  that  of  folk-custom ; 
folkways  of  which  the  folkgroup  has  become  conscious;  recog- 
nized as  necessary  to  the  welfare  of  the  group,  and  enforced  by  it 
through  various  artifices  more  or  less  intelligently  devised  to  that 
end.  Conformity  with  folk-custom  is  approved  by  the  folkgroup 
as  right,  while  its  breach  is  condemned  as  wrong.  Notions  of 
right  and  wrong  as  applied  to  conduct,  therefore,  grow  out  of  the 
approval  or  disapproval  which  the  group  visits  upon  those  who 
respect  or  disregard  the  uniform  modes  of  conduct  which  it  looks 
upon  as  essential  to  its  welfare. 

Folkways  and  folk-customs  embody  the  results  of  man's  in- 
telligence and  observation  through  centuries  of  experiments"  in 
the  art  of  how  to  live  and  satisfy  his  instincts  with  the  least  effort. 
Faculties  the  most  recently  developed  are  always  these  that  in- 
volve the  most  effort  in  their  exercise ;  and  the  greatest  and  most 
fatiguing  work  that  falls  to  the  lot  of  man  is  the  exercise  of  choice 
and  judgment.  And  so  the  folkways  are  the  outcome  of  an  in- 
stinctive desire  to  adjust  life  to  environment  along  those  lines 
that  call  for  the  least  constant  output  of  choice  and  judgment. 

In  spite  of  the  resistance  of  folkway  and  folk-custom  to  change, 
owing  to  mental  effort  involved  in  new  choices,  it  must  not  for  a 
moment  be  supposed  that  the  ways  and  customs  of  the  folk  are 
fixed,  crystallized  or  immutable ;  the  dead  hand  of  antiquity 
throttling  a  virile  race  in  its  struggles  to  gain  higher  happiness 
through  a  nicer  adjustment  of  life  to  constantly  changing  environ- 
ment. But  folk-custom  says  to  the  individual  or  to  the  subgroup 
—  You  shall  not  pursue  your  advantage  at  the  expense  of  the 
folkgroup.  The  persistent  force  of  folk-custom  is  more  than  an 
anthropological  curiosity,  although  some  reformers  would  per- 
suade us  that  its  only  function  is  to  resist  a  worshipful  movement 
called  Progress.  We  have  become  conscious  of  the  existence  of 
folk-customs,  it  is  true,  through  their  study  among  ancient  and 
primitive  peoples.  But  it  does  not  follow  that  they  are  of  no 
service  to  the  modern  State.  Old  they  may  be,  but  not  always 
outworn ;  like  the  Archean  rocks  they  may  still  yield  the  richest 
ores  for  the  making  of  the  social  part  of  man's  machinery  of 
efficiency. 

In  modern  society  both  folkways  and  folk-customs  exist  in 
all  stages  of  life,  growth  and  decay;  they  are  born,  pass  from 
youth  to  maturity,  and  die  daily.  Once  attained,  the  sociological 
view  of  life  gives  insight  for  the  perception  and  classification  of 
these  uniform  sequences  of  conduct  of  which,  in  the  main,  we  are 


Chap.   XV.]  SYMPATHY  395 

as  unconscious  as  we  are  of  the  wonderful  and  brilliant  bird  life 
which  scintillates  in  the  forest,  hidden  behind  its  shade  to  those 
who  know  not  how  and  where  to  look. 

The  most  striking  attribute  of  folk-custom  is  that  it  can  make 
anything  right  and  protect  anything  from  condemnation.  More- 
over, the  same  conduct  may  be  prohibited  by  the  custom  of  one 
group  and  permitted  by  that  of  another. 

Slavery,  for  example,  exists  today  by  social  approval  in  Turkey, 
Morocco,  in  many  isolated  districts  of  the  Asiatic  and  African 
colonies  and  in  Mexico.  Folk-custom  in  the  tribe  of  Israel  com- 
mended the  conduct  of  Samuel  in  hewing  to  pieces  his  unarmed 
captive  Agag,  king  of  the  Amale  kites,  by  the  direction  of  the 
Lord  (I  Sam.  xv,  32,  33),  and  likewise  the  slaughter  by  the  Hebrews 
of  the  helpless  women  captured  from  the  Midianites  (Num.  xxi), 
although  such  conduct  would  be  condemned  by  our  folk-custom 
today  as  criminal  and  wrong.  Folk-custom  sanctions  the  Sunday 
theater  in  Chidkgo,  St.  Louis  and  New  Orleans  and  prohibits  it 
in  Boston,  New  York  and  Philadelphia.  It  permits  the  sale  of 
a  cigar  on  Sunday  in  Washington  and  makes  it  a  crime  in  Char- 
lotte, N.  C. 

Confusing  as  the  discordance  of  folk-customs  may  seem  to  those 
who  observe  their  wide  divergences  under  diflFerences  of  time  and 
space,  they  are  none  the  less  capable  of  being  studied,  compared 
and  grouped,  and  from  their  mandates  or  prohibitions  with  re- 
spect to  particular  acts  men  have  in  the  course  of  time  rudely 
drawn  general  rules  covering  groups  of  acts. 


The  evolution  of  an  ethical  principle  can  be  made  apparent 
by  a  consideration  of  some  one  set  of  moral  obligations  in  their 
historical  sequence  through  the  various  phases  of  social  evolution. 
Take  for  instance  the  rights  of  property  and  the  wrong  of  theft. 

Property,  it  must  be  observed,  does  not  consist  at  all  of  material 
objects,  but  of  the  various  rights  of  use,  control  and  disposal  which 
persons  exercise  with  regard  to  their  possessions.  To  begin  with, 
the  simplest  right  which  one  may  have  with  respect  to  anything 
is  to  use  it.  And  although  he  may  have  the  right  to  use,  he  may 
neither  be  able  to  control  it  for  his  continued  enjoyment,  nor 
for  qualified  disposal,  such  as  to  lend  or  to  hire.  Nor  do  the 
rights  of  use  and  control  necessarily  confer  the  right  of  absolute 
disposal,  either  (a)  by  exchange,  that  is  to  say,  by  sale  and  de- 
livery, (6)  by  gift,  (c)  by  bequest  or  other  testamentary  process 


396  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

or  {d)  by  a  contract  to  sell  and  deliver  at  a  future  time.  As  a 
corollary  to  these  rights  there  are  the  cognate  rights  of  acquisi- 
tion;  by  plunder,  by  discovery,  by  fabrication,  by  inheritance 
or  by  exchange. 

The  primitive  foundations  of  property  rights  are  undoubtedly 
laid  in  the  instinct  of  acquisition  which  humanity  inherits  from 
its  animal  forbears,  and  from  whose  influence  it  cannot  escape. 
It  shares  this  innate  tendency  with  the  squirrel  who  lays  by  a 
store  of  nuts  against  the  winter,  with  the  bird  who  defends  its 
nest,  or  the  bee  which  both  stores  the  honey  and  stings  the  invader 
of  its  hive.  Such  primitive  forerunners  of  property  rights  are 
hardly  more  than  an  assertion  of  the  right  to  defend  them,  for 
except  among  the  developed  group  life  of  the  bee  there  is  no 
acknowledgement  of  a  corresponding  duty  to  respect  the  right 
of  the  hoarder  or  the  builder,  and  therefore  no  completed  obli- 
gation. 

In  the  life  of  the  child  the  outcropping  of  the  instinct  of  ac- 
quisition may  be  observed  at  a  very  tender  age;  before  in  fact 
the  infant  is  capable  of  expressing  emotion  other  than  in  the  crudest 
way;  but  in  its  promptings  we  may  unquestionably  find  the 
source  of  its  later  potency  in  the  folkways  and  folk-customs  of 
the  successive  social  groupings,  in  each  of  which  the  evolution  of 
property  rights  has  its  co-ordinate  phase. 

In  the  primitive  family  group  individual  property  rights,  except 
that  of  use,  were  practically  undeveloped ;  the  folkway  being  for 
the  group  members  to  make  common  use  of  its  various  possessions. 
As  the  group  was  industrially  self-sufficing  there  was  no  occasion 
for  disposal  by  exchange  save  in  case  of  famine.  The  family 
head,  the  father  or  mother,  had  during  lifetime  only  a  titular 
right  of  control  exercised  for  and  on  behalf  of  the  group,  descend- 
ing automatically  according  to  the  folkways  governing  primitive 
inheritances ;  but  without  the  right  of  testation  or  disposal ;  and 
in  the  rare  cases  when  exchanges  were  required  folk-custom  es- 
tablished a  groupal  right  to  share  the  proceeds.  When  by  separa- 
tion of  some  of  its  members  a  new  family  was  established,  a  rough 
partition  of  the  common  stock  of  goods  was  accomplished,  as  in 
the  classic  instance  of  Jacob  and  Laban.  Under  these  circum- 
stances there  could  be  no  theft  within  the  group.  The  survival 
in  Roman  civilization  of  the  Patria  potestas  is  an  enlightening 
instance  of  the  persistence  in  culture  of  the  shadowy  folkways  of 
control  prevailing  in  a  much  earlier  social  type.  .  .  .  The  rudi- 
mentary idea  of  a  community  of  goods  universal  among  primitive 


Chap.   XV.]  SYMPATHY  397 

people  still  survives  in  the  developing  mind  of  the  child ;  to  whom 
it  is  not  robbery  to  take  and  use  a  part  of  what  his  ancestors  would 
have  considered  as  common  goods. 

In  the  clan  folkgroup,  dominated  by  the  interest  of  kin,  the 
folk-customs  surrounding  common  use  of  the  joint  product  con- 
tinued ;  each  member  had  rights  of  use  in  the  game,  flocks  and 
herds  and  fruits  of  the  field,  still  the  result  of  joint  effort.  But 
the  folkways  permitted  individual  or  family  control  of  weapons 
of  the  chase,  of  war,  of  hunting  dogs  trained  by  members,  and 
possibly  of  some  kinds  of  rude  tools,  of  which  others,  like  grain 
crushers,  were  still  the  property  of  the  clan.  Within  family  lines 
the  folkw^ays  preserved  the  earlier  strict  rules  of  succession  for  the 
common  stock  of  family  goods,  which  prohibited  disposal  by  gift, 
exchange  or  bequest.  Exchanges,  if  made,  were  communal ;  mem- 
bers of  outgroups,  strangers,  could  neither  hold  nor  inherit  any  sort 
of  property  rights.  With  environmental  conditions  that  made 
for  scarcity  of  food  began  the  exchange  of  products  by  plunder, 
an  inciting  cause  perhaps  of  the  petty  wars  that  led  on  the  one 
hand  to  eventual  subjection  and  slavery,  and  on  the  other  hand 
to  that  folk-custom  of  clan  alliances  which  eventuated  in  the 
formation  of  tribes. 

The  tribe,  therefore,  came  into  its  own  with  folkways  of  family 
communism,  a  less  complete  clan  communism,  and  the  beginnings 
of  a  folk-custom  asserting  rights  of  continuous  personal  control 
over  certain  classes  of  articles  for  enjoyment  as  well  as  for  quali- 
fied disposal,  i.e.,  lending  or  hiring  within  the  limits  of  the  tribal 
peace.  The  greater  division  of  labor  within  tribal  bounds  natu- 
rally overthrew  the  self-sufficing  industrial  life  of  the  pre-existing 
clans;  there  were  commodities  in  excess  here,  a  short  supply 
there.  There  was  need  for  exchange.  The  folk-custom  already 
countenanced  plunder ;  hence  it  was  no  theft  to  rob  an  outgroup. 
When  exhausted  by  war,  tribes  who  normally  would  shun  recipro- 
cal intercourse,  feigned  to  conform  with  this  folkway  by  taking  a 
quantity  of  their  common  goods  to  the  border  and  leaving  them 
th^re  in  the  trust  that  so  easy  a  conformity  with  the  plunder 
folkway  would  tend  to  reciprocity.  And  so  it  was  that  the  ad- 
vantages of  exchange  were  brought  into  consciousness  and  neutral 
grounds  were  established  on  contiguous  borders,  and  by  joint 
folk-custom  days  agreed  upon  -for  the  conduct  of  exchanges  in  a 
primitive  market.  Mercury,  the  god  alike  of  plunder,  of  travel 
and  of  trade,  represented  mythically  the  associations  which 
clustered  about  these  age-long  customs. 


398  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

As  intertribal  commerce  grew  the  kinship  subgroups  began  to 
produce  speciaUzed  products;  and  the  developing  tribe,  finding 
an  economic  loss  involved  in  communistic  exchange,  adapted  its 
folk-custom  so  as  to  acknowledge  a  right  of  disposal  of  their  prod- 
ucts by  the  subgroups  themselves.  Meantime,  the  growing  use 
of  tools  and  the  demand  for  more  effective  weapons  had  gradually 
attached  some  of  the  rights  of  disposal  to  the  earlier  folk-custom 
recognizing  individual  rights  of  use  and  control  of  these  imple- 
ments. In  a  ruder  and  more  primitive  age  weapons  and  tools 
had  been  buried  with  him  who  had  enjoyed  in  them  the  primitive 
rights  of  use  and  control ;  but  as  such  implements  grew  more  com- 
plex and  more  valuable  folk-custom  attached  to  them  the  right 
of  gift  or  bequest,  at  first  confined  to  kin,  then  extended  to  all 
tribal  members.  Meantime,  folk-customs  were  growing  which 
established  private  rights  of  use,  control  and  disposal  in  booty 
resulting  from  the  plunder  of  an  outgroup  by  an  individual,  or  the 
tools,  etc.,  used,  made  or  inherited  by  him.  As  facilities  for  market 
exchanges  increased  it  could  not  be  but  that  thrifty  industrials 
should  be  allowed  similar  rights  in  purchased  goods. 

The  private  ownership  of  land  is  unrecognized  amongst  groups 
which  in  civilization  have  not  passed  beyond  the  hunting  and 
grazing  stages  of  subsistence ;  at  first  boundaries  are  recognized 
to  communal  domains,  and  later  a  more  definite  folkgroup  interest 
in  the  area  which  boundaries  circumscribe,  combined  with  a  capac- 
ity for  disposal,  becomes  imbedded  in  the  tribal  folkway.  Later, 
a  folkway  of  individual  possession  of  a  portion  of  the  soil  through 
use  and  occupancy  is  somewhere  accidently  ^  and  sporadically 
developed ;  and  the  greater  efficiency  of  a  fixed  tenure  so  demon- 
strated gives  rise  to  a  nascent  folk-custom  of  full  land  ownership  ■ — 
which,  in  spite  of  its  spread,  is  far  from  universal  even  in  the 
national  type  of  folkgroup. 

There  are  a  host  of  survivals  in  language,  custom  and  law  of 
these  earlier  and  less  complete  property  folk-customs  of  the  family 
clan  and  tribal  folkgroups.  In  Roman  jurisprudence  the  word 
dominium  and  in  English  the  words  demesne  and  domain  remijid 
us  of  the  days  when  the  dominus,  or  head  of  the  house,  alone 
exercised  the  communal  family  rights  of  possession.  The  word 
mancijpium,  ''  the  firm  grasp",  applied  to  another  form  of  property 
right,  is  a  relic  of  the  supposition  that  it  was  supposed  to  have 

1  The  use  of  this  term  does  not  imply  that  the  event  was  uncaused ; 
only  that  it  was  the  product  of  normally  conflicting  forces  acting  for  once 
in  harmony. 


Chap.  XV.]  SYMPATHY  399 

been  acquired  by  plunder,  and  if  not  retained  by  a  very  firm 
grasp  would  probably  be  lost  again. 

When  but  a  few  of  these  rights  are  in  question  it  is  enough  for 
folk-custom  to  say  this  man  has  a  right  to  his  axe,  his  spade,  his 
spear,  his  knife,  his  fishhook,  his  arrow,  etc.,  giving  in  each  instance 
a  specific  pronouncement  for  the  members  of  the  folkgroup  to 
follow.  But  as  instances. grow  more  and  more  numerous  there  is 
need  for  a  general  rule  condensing  and  summarizing  all  of  the 
separate  prohibitions  or  permissions  of  the  separate  folk-custom. 
And  hence  the  classification  of  all  of  these  property  rights  as  pos- 
sessions and  the  moral  rule  drawm  therefrom  —  "  thou  shalt  not 
steal  "  —  consolidating  in  a  single  precept  the  duty  of  all  with 
regard  to  the  property  rights  acquired  by  individuals  in  material 
objects. 

In  the  nation,  to  the  earlier  rights  of  disposal  by  exchange  and 
gift  are  added  the  more  personal  rights  of  disposal  by  bequest 
and  by  contract;  in  acquisition,  rights  to  exclusive  possession 
of  what  objects  have  been  made,  invented  or  used  are  developed 
through  patent  right,  copjTight,  easements,  etc. ;  and  the  facility 
of  exchange  is  much  promoted  by  a  gradual  growth  of  folk-customs 
covering  the  buying  and  selling  of  written  representatives  of 
property  rights  in  more  cumbrous  material  objects.  Title  to  a 
thousand  bales  of  cotton  or  to  a  share  in  the  ownership  of  a  rail- 
road passes  easily,  according  to  our  folk-custom,  by  the  transfer 
of  a  warehouse  receipt  or  of  a  stock  certificate.  And  thus  nations 
have  seen  their  interest  in  the  establishment  of  folk-custom  per- 
mitting a  far  wider  range  of  individual  property  rights  than  was 
dreamt  of  in  the  simpler  social  structure.  The  right  of  disposal 
has,  with  few  exceptions,  become  absolute  in  those  nations  which 
are  most  civilized,  because  experience  has  shown  that  in  this  way 
is  produced  the  largest  supply  of  consumable  goods,  fit  for  the 
fending  off  of  famine  and  want  as  well  as  for  the  satisfaction  of 
those  more  complex  desires  arising  from  the  psychic  motive  forces 
which  more  and  more  are  dominating  mankind. 

And  so  we  may  see,  through  all  groupal  phases  of  the  family, 
the  clan,  the  tribe  and  the  nation  with  a  constantly  increasing 
complexity  of  social  structure,  a  corresponding  accretion  and 
enlargement  by  the  addition  of  one  attribute  after  another  to  the 
folk-custom  of  private  ownership.  In  the  family  there  are  few 
individual  rights  of  property;  use  and  control  are  communal, 
disposal  is  practically  unrecognized.  In  the  clan  structure  the 
right  of  use  becomes  personal ;   the  right  of  control  vests  in  the 


iOO  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

family,  the  right  of  disposal  is  still  in  the  folkgroup.  In  the  tribe, 
rights  of  use  and  control  become  personal ;  some  of  the  simpler 
forms  of  the  right  of  disposal  gradually  attach  to  the  individual ; 
others  are  still  communal  or  unknown.  In  the  nation  the  right 
of  contract  is  gradually  discovered  and,  with  caution,  the  folk- 
customs  admit  individuals  to  its  privileges.  It  is  neither  compre- 
hensive nor  universal  to  this  day.  So  far  as  land  is  concerned, 
property  rights  therein  are  developed  later  and  more  slowly  than 
those  in  movable  objects;  in  modern  national  societies  land 
ownership  is  in  various  stages  of  incomplete  possession,  varying 
widely  from  folk  to  folk. 

As  we  have  observed  with  respect  to  folkways,  their  prevalence 
and  incidence  are  in  inverse  ratio  to  the  size  of  the  group.  And  so 
it  is  with  custom.  The  customs  simultaneously  prevailing  in  any 
subgroup  are  the  folk-customs  of  its  folkgroup  plus  an  increment 
of  class-customs  which  are  felt  to  be  essential  to  the  welfare  of  the 
subgroup.  Therefore,  the  prevalence  of  custom,  like  that  of  folk- 
ways, is  in  inverse  ratio  to  the  size  of  the  group.  It  follows  that, 
given  a  number  of  acts  which  the  folkgroup  recognizes  as  right 
or  wrong,  the  subgroup  will  place  a  still  larger  number  of  acts  in 
the  same  category.  Certain  conduct,  like  theft  and  fraud,  are 
folkgroup  wrongs,  universally  condemned  by  folk-custom;  other 
conduct,  like  unfair  competition,  destructive  underselling  and 
preferential  price  rebates,  are  wrongs  to  some  one  of  the  industrial 
groups  and  are  so  condemned  by  and  complained  of  by  them.  .  .  . 

In  any  society  compounded  of  subgroups  there  will  be  co- 
existent numerous  systems  of  class-customs,  some  of  whose  rules 
are,  but  many  of  which  are  not,  accepted  by  the  greater  group. 

The  members  of  subgroups  within  the  folkgroup  will  hold  to 
class-custom  with  respect  to  the  fellow  members  of  their  sub- 
group ;  and  to  folk-custom  with  respect  to  other  members  of  their 
folkgroup.  Sometimes  this  will  display  in  intragroup  relations 
a  reversion  to  clan  folk-custom,  often  suggesting  a  variety  of  social 
phases  co-existent  in  the  same  folkgroup,  and  of  a  lower  phase  of 
civilization  in  some  of  the  subgroups. 


Neither  in  clan,  tribe  or  nation  was  there  originally  any  effort 
to  preserve  the  rights  of  members  of  outgroups ;  and  so  in  the  times 
of  Elizabeth  and  the  Stuarts  predatory  private  war  on  the  sub- 
jects of  a  peaceful  nation  was  countenanced  by  British  folk-custom 
and  excused  by  the  international  morals  of  the  day.     The  plunder 


Chap.   XV.]  SYMPATHY  401 

of  the  outfolk  in  the  form  of  piracy  was  winked  at  in  the  Carolinas 
and  not  condemned  by  the  citizens  of  New  York  or  Philadelphia 
down  to  the  beginning  of  the  eighteenth  century ;  so  that  efforts 
of  lawmakers  to  suppress  the  practice  were  nullified  by  the  par- 
tiality of  juries.  Until  after  the  War  of  Independence  the  cap- 
ture of  negroes  and  the  trade  in  slaves  formed  a  profitable  part 
of  the  ventures  of  the  old  merchants  of  Salem  and  Boston;  in 
both  instances  because  these  practices  were  supported  as  favorable 
to  the  folkgroup  welfare.  They  were  a  survival  in  the  nation  phase 
of  civilization,  of  plunder-exchange  folk-customs  inherited  from 
a  previous  phase  of  tribal  society,  and  morally  excused  by  the 
persistence  in  outgroups  of  the  primitive  exclusion  from  market 
rights,  or  of  obsolescent  but  not  obsolete  property  rights  in  human 
beings.  Even  in  our  own  day  modern  folkgroups  or  nations  but 
imperfectly  recognize  a  moral  principle  when  applied  to  other 
peoples ;  and  citizens  feel  less  firn;ly  bound  to  protect  the  property 
rights  of  foreigners  than  they  do  those  of  the  fellows  of  their  own 
group. 

Just  as  the  savage  considers  it  right  to  murder  any  stranger 
but  wrong  to  steal  a  trifle  from  any  fellow  tribesman,  so,  at  the 
present  day,  ingroups  of  trades-unionists  consider  it  a  greater 
wrong  to  deprive  a  fellow  worker  of  his  job  than  to  waylay  and 
assault  a  strikebreaker,  and  our  nation  group  has  justified  a  con- 
duct toward  the  Colombians  and  Filipinos  that  would  be  regarded 
as  the  grossest  injustice  if  practiced  at  home. 

Folk-custom,  it  will  be  remembered,  is  the  selection  by  the 
folkgroup,  in  accordance  with  its  ideals  of  welfare,  of  certain  of 
the  folkways  produced  by  efforts  to  satisfy  interests  arising  out 
of  the  four  great  leading  motives  of  hunger,  love,  vanity  and  fear. 
And  these  motives  work  with  reference,  not  to  the  interest  of  its 
members  as  individuals,  but  to  their  interest  as  members  of  a 
group,  or  the  interest  of  the  folkgroup  itself.  It  is  in  fact  the  self- 
ish interest  of  the  group,  large  or  small,  which  prevails  in  the 
establishment  and  choice  of  folk-custom,  and  which  dominates 
the  morals  derived  from  those  folk-customs.  These  so  derived 
are,  however,  only  a  part  of  the  body  of  moral  rules  which  finally 
prevail  among  the  higher  folkgroups;  and  another  part,  drawn 
from  nurtureways  which  are  more  the  results  of  individual  emo- 
tions than  of  group  feeling,  it  will  next  be  necessary  to  con- 
sider. 


402  FACTORS   OF   LEGAL  EVOLUTION  [Paet  II. 

II.    The  Group  and  the  Individual 

It  has  been  noticed  by  all  observers  that  the  moral  system 
founded  upon  folk-custom  is  disregardful  of  the  individual.  This 
is  not  surprising  when  its  origin  is  considered.  It  is  the  product 
of  social  evolution  —  of  the  evolution  of  folkgroups.  Out  of 
the  established  folkways  the  group  selects  as  folk-customs  those 
which  it  deems  essential  to  its  group  welfare  and  enforces  them. 
Except  in  so  far  as  the  individual  shares  the  welfare  of  the  group 
they  do  not  consider  him.  The  men  who  compose  the  group 
inherit  the  habits  and  instincts  of  their  animal  forefathers,  and 
the  precedent  of  nature,  which  pays  no  heed  to  individual  welfare, 
is  what  they  have  to  guide  them  in  their  concept  of  what  it  is 
right  that  individuals  should  expect  of  the  folkgroup.  In  all 
nature  and  with  primitive  man  there  was  almost  always  an  over- 
production of  individuals  with  respect  to  the  means  of  subsistence, 
so  that  many  must  in  some  event  perish,  in  order  that  few  might 
survive. 

And  so  it  was  not  to  be  questioned  that  the  primitive  folkgroup, 
under  the  pressure  of  recurring  famine,  should  find  in  a  correspond- 
ing limitation  of  the  right  to  live  some  security  for  its  own  integrity 
and  survival.  In  many  parts  of  China  the  redundant  population 
is  still  kept  down  by  the  folk-custom  of  drowning  or  poisoning 
a  considerable  fraction  of  its  girl  babies ;  they  think  no  more  of 
it  than  we  do  of  drowning  kittens.  It  is  a  filial  duty  among  the 
Eskimos  to  kill  their  old  people  when  they  become  burdensome. 

Many  illustrations  may  be  adduced  of  the  essential  brutality 
of  folk-custom  in  its  bearing  upon  the  individual.  In  some 
groups  it  has  made  a  sacred  duty  of  cannibalism.  In  mediaeval 
times  folk-custom  approved  the  slaughter  of  heretics  just  as  we 
approve  the  killing  of  rattlesnakes,  and  regarded  torture  as  a 
legitimate  means  of  procuring  evidence.  .  .  .  Annually  the 
Spartans  had  a  roundup  of  their  subject  Helots  and  killed  a 
number  of  them  to  keep  fresh  their  own  warlike  qualities.  Not 
condemned  by  folk-custom,  these  acts  are  not  contrary  to  the 
morals  of  the  time  and  place.  .  .  .  These  are  only  extreme  in- 
stances of  the  frequent  brutality  of  folk-custom,  and  of  its  in- 
difference to  individual  welfare  whenever  it  is  in  supposed  conflict 
with  that  of  the  group. 

In  our  survey  of  the  various  influences  by  which  conduct  is 
guided  we  began  with  instinct ;  for  it  seemed  to  be  the  parent  of 
human  folkways  and  to  govern  conduct  that  might  be  partly 


Chap.   XV.]  SYMPATHY  403 

influenced  by  the  will.  Much  of  our  behavior  is,  nevertheless, 
actuated  by  reactions  of  our  organism  with  its  environment  of  an 
absolutely  involuntary  kind;  tropisms,  or  movements  which  are 
the  result  of  purely  physical  surroundings  such  as  the  external 
influence  of  heat,  light,  electricity ;  the  motions  of  air  and  water, 
and  the  chemical  reactions  within  the  body.  Above  these  comes 
another  class  of  involuntary  movements  caused  by  reflex  nervous 
action,  which  must  be  reckoned  with  in  a  full  consideration  of  all 
the  conditions  by  which  our  ultimate  action  is  determined.  Be- 
side instinct,  the  next  higher  faculty,  we  have  now  considered  the 
social  influences  of  folkways  and  folk-customs ;  but  if  we  examine 
what  is  conceded  by  everybody  to  be  the  highest  type  of  morals 
as  they  are,  it  is  plain  that  there  is  something  yet  needed  to  account 
for  those  higher  motives,  beyond  and  superior  to  the  merely 
groupal  welfare ;  which  may  express  not  the  potency  of  the  group 
toward  the  individual,  or  the  subjection  of  the  individual  to  the 
group ;  but  that  interaction  of  individuals  upon  individuals  whose 
rule  has  been  expressed  by  moral  masters,  from  Confucius  to 
Christ,  in  the  precept  that  we  must  do  to  others  as  we  would  have 
others  do  to  us. 

Because  up  to  this  point  we  have  heard  little  about  the  individ- 
ual man  it  will  not  do  to  suppose  that  he  does  not  exist ;  or  that  his 
existence  can  be  ignored.  .  .  .  Because  in  physics  and  chemistry 
we  hear  much  of  atoms  and  molecules  and  compounds  and  of  their 
behavior  under,  various  reactions,  it  would  not  do  to  overlook  the 
less  conspicuous  electrons  and  ions  of  which  they  are  composed. 

The  conduct-mode  which  we  shall  now  discuss  is  discernible 
only  when  self-consciousness  becomes  so  far  developed  as  to  recog- 
nize the  welfare  of  the  individual  as  an  individual.  At  first  it 
obtrudes  itself  but  faintly,  for  it  is  overwhelmed  and  overshadowed 
by  the  tremendous.. social  force  of  folk-customs  which  arise  from 
group-consciousness.  It  increases,  however,  in  potency  as  man 
continues  to  evolve  toward  the  higher  type.  Individual,  it 
co-operates  with  the  social,  to  the  making  of  a  wholly  moral  man. 
But  exactly  as  liberty  —  one  of  the  social  expressions  of  individual 
consciousness  —  begins  to  express  itself  politically,  so  soon  as 
the  tremendous  integrating  bonds  of  intertribal  conflict  have 
begun  to  dissolve  in  the  more  disintegral  peace  powers  of  a  nation, 
just  so  soon  do  men  begin  to  seek  a  wider  individual  welfare  than 
can  be  pursued  under  their  continued  subjection  to  the  folkgroup, 
as  expressed  in  its  folk-customs.  And  so  individualism  enters 
into  competition  with  socialization  as  a  means  of  human  welfare. 


404  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

In  all  kinds  of  action  and  reaction,  whether  of  material  or 
physical  bodies,  we  always  find  ourselves  in  the  presence  of  oppo- 
site and  contending  forces,  the  resultant  of  which  is  a  compromise 
or  balance  along  whose  lines  the  resultant  motion  or  activity  takes 
place.  In  physics  we  call  these  opposing  forces  attraction  and 
repulsion ;  in  chemistry  we  speak  of  them  as  affinity  and  resistance. 
The  expression  which  they  take  in  economics  is  that  of  co-opera- 
tion and  competition;  in  politics  of  socialism  and  individualism. 
All  in  all  these  are  nothing  more  than  the  physical  or  psychical 
expression  of  two  universal  causes  of  motion  underlying  all  nature 
and  life,  which  are  summarized  by  the  opposing  ideas  of  concur- 
rence and  antagonism.  .  .  . 

For  every  act  there  are  motives.  In  those  that  we  have  thus 
far  considered  we  have  seen  the  influence  only  of  the  four  great 
primeval  motives  of  hunger,  love,  vanity  and  fear.  As  society 
progresses  in  the  practice  of  the  peace  folk-custom,  as  mankind 
becomes  more  gentle  and  intelligent,  a  fifth  social  motive  is  dis- 
cernible in  addition  to  these.  This  motive  is  that  of  compassion 
or  pity,  which  since  the  time  of  Confucius  has  been  recognized 
as  the  source  of  the  highest  form  of  moral  conduct.  Compassion 
is  the  capacity  that  one  individual  possesses  of  imagining  the 
feelings  of  another  and  which  makes  him  unwilling  to  do  anything 
which  is  likely  to  injure  that  other  person.  And  yet,  as  Dr. 
Johnson  has  observed,  it  is  not  natural  to  man.  Children  are 
always  cruel.  Savages  are  always  cruel.  We  may  have  uneasy 
sensations  for  seeing  a  creature  in  distress  without  pity;  for  we 
have  not  pity  unless  we  wish  to  relieve  it. 

The  origin  of  pity  is  found  in  the  parental  instinct,  expanding 
in  man  into  the  tender  emotion  which  is  evoked  by  the  helpless 
child  —  ''  flesh  of  our  flesh."  This  tender  emotion  is  most  natu- 
rally extended  to  include  blood  relations  composing  the  kinship 
group ;  its  first  heterethnic  manifestation  is  probably  the  feeling 
of  guest-friendship,  the  earliest  evidence  of  compassionate  rela- 
tions with  strangers.   .   .   . 

Like  the  motives  of  vanity  and  fear,  the  compassion  motive 
is  psychic,  and  is  built  upon  the  framework  of  a  developed  brain. 
Psychologically  it  is  a  complex  sentiment  instead  of  a  primary 
instinct.  Jts  diffusion  and  acceptance  are  due  to  the  fact  that 
those  who  are  most  actuated  by  this  motive  have  a  better  chance 
for  survival  in  the  struggle  for  existence  than  those  by  whom  it 
is  not  possessed. 

The  course  of  natural  selection   in  the  evolution  of  greater 


Chap.   XV.]  SYMPATHY  405 

sensitiveness  of  nervous  organization  in  the  human  race  through 
compassion  has  been  well  stated  by  Sutherland  :  "  The  man  who 
is  a  good  father,  a  good  husband  and  a  good  citizen,  is  the  ancestor 
of  many  progeny ;  while  the  Napoleonic  type  of  abundant  brains 
but  deficient  sympathies,  even  though  it  make  a  brilliant  career, 
perishes  in  a  century  or  less  from  off  the  face  of  the  earth.  Each 
person  now  living  has  two  parents,  four  grandparents,  eight 
great  parents  and  so  on.  Thus  ten  generations  back  his  ancestors 
formed  a  living  regiment  of  1024  persons.  Make  a  small  allow- 
ance "  for  in-breeding  "  and  assume  that  on  the  average  each 
Englishman  of  the  present  day  had  1000  ancestors  of  the  tenth 
degree  all  living  in  the  time  of  Queen  Elizabeth.  Let  us  assume 
that  there  were  then  born  500  boys  and  500  girls  who  might  have 
been  the  ancestors  of  the  now  living  individual.  A  portion  of 
these  were  weeded  out,  some  of  them  died  through  want  of  suf- 
ficient parental  care,  others  as  they  grew  up  died  through  their 
own  failure  of  sympathetic  qualities.  It  is  no  exaggeration  to 
say  that  out  of  a  thousand  possible  ancestors  fifty  would  on  the 
average  be  eliminated  through  the  failure  of  parental,  conjugal 
or  social  qualities.  In  Elizabeth's  time  out  of  every  1000  persons 
born  five  were  actually  hanged.  But  brawls,  venereal  diseases, 
etc.,  were  far  more  potent  cleansers  of  society.  Thus  those 
eliminated  w^ould  be  replaced  by  men  and  women  of  better  stock 
(that  is  to  say,  those  who  were  protected  from  elimination  by  more 
effective  sympathies).  And  so  we  may  feel  sure  that  at  each 
generation  a  steady  5  per  cent  of  the  poorer  type  was  withdrawn, 
leaving  room  for  the  expansion  of  those  richer  in  sympathetic  quali- 
ties. But  the  power  of  such  a  steady  withdrawal  acting  in  cumu- 
lative fashion  is  enormous  when  spread  over  a  sufficient  time  .  .  . 
and  if  we  had  means  of  sifting  the  people  of  Queen  Elizabeth's 
time  into  two  equal  sets,  those  who  could  pass  in  these  days  for 
fairly  good  men  and  women,  and  those  who  were  more  or  less  dis- 
tinctly below  the  average  ...  it  would  be  found  that  practically 
none  of  the  inferior  blood  flows  in  the  veins  of  the  present  genera- 
tion ;  we  being  bred  almost  wholly  from  the  better  stock." 

We  have  seen  how  folk-custom  is  important  for  the  welfare 
and  preservation  of  the  folkgroup;  it  better  fits  the  clan,  tribe 
or  nation  to  survive  —  as  a  group.  From  the  foregoing  illustra- 
tion we  may  perceive  how  conduct  derived  from  compassion 
better  fits  for  survival  the  individual,  with  which  folk-custom, 
except  incidentally,  is  little  concerned. 

A  progressive  alteration  of  our  moral  sentiments  toward  the 


406  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

recognition  of  a  right  of  individual  happiness,  as  contrasted  with 
group  welfare,  is  due  to  the  increasing  force  which  the  compassion 
motive  acquires  in  the  course  of  the  social  evolution  from 
savagery  to  civilization.  Personal  liberty,  its  political  symptom, 
is  the  outcome  of  a  sense  of  pity  felt  by  the  masses  of  a  folkgroup 
for  themselves  and  for  each  other  in  a  state  of  misery  and  degra- 
dation of  which  they  become  conscious  through  the  contrast  of 
the  condition  with  that  of  their  dominant  subgroup.  Its  force  is 
individualistic,  expressed  either  by  orderly  attempts  to  change 
folk-custom  through  institutional  adaptations,  as  in  the  slow  break- 
ing up  of  military  feudalism  in  England ;  or,  if  repressed,  by  out- 
bursts of  violence  such  as  those  of  the  French  Revolution. 


The  process  by  which  humanistic  rules  of  conduct  become  the 
basis  of  a  new  kind  of  folk-custom  originates,  therefore,  in  the 
kinship  group.  Some  of  the  group  members,  in  whom  compassion, 
or  the  tender  emotion,  is  most  strongly  developed,  discover  the 
suffering  of  other  individuals,  as  a  result  of  conduct  following 
some  folk-custom,  and  by  their  protests  folk-feeling  is  gradually 
excited  to  the  point  of  its  condemnation. 

Take,  for  example,  the  folk-custom  of  infanticide.  It  seems 
to  have  prevailed  amongst  the  early  peoples,  especially  those  in 
which  population  tended  to  outrun  subsistence.  The  Egyptians 
practiced  it  with  no  feeling  of  guilt  against  the  Hebrews  in  the 
days  of  the  captivity.  The  Jews  themselves  practiced  it,  and 
the  instance  of  Abraham's  treatment  of  his  two  sons  shows  that 
their  folk-custom  was  averse  neither  to  child  exposure  nor  to  child 
sacrifice.  They  had  at  no  time  any  hesitation  in  perpetrating 
it  upon  an  outgroup.  But  prophets  and  seers  —  idealists  —  de- 
claimed against  it.  The  best  families  showed  that  they  disap- 
proved of  it;  and  these  families  by  their  continued  aptitude 
for  survival,  and  consequent  leadership,  had  great  influence  in 
the  spread  of  their  ideals.  Rather  than  expose  or  kill  their  daugh- 
ters, they  introduced  the  humanistic  of  sparing  them,  even  if  later 
sold  as  slaves  or  concubines.  By  degrees  the  humanistic  thus 
introduced  became  a  folk-custom  of  the  Jews.  The  Greeks  of 
the  epic  period  were  quite  indifferent  to  the  survival  of  their 
children,  so  much  so  that  the  great  Spartan  tribe  was  by  this 
sentiment  reduced  to  insignificance.  Infanticide  was  well  in- 
grained in  early  Roman  folk-custom  and  it  was  one  of  the  un- 
questioned rights  of  the  Patria  potestas.     Softened  by  the  human- 


Chap.   XV.]  SYMPATHY  407 

istic  of  adoption,  it  nevertheless  prevailed  long  enough  to  become 
a  contributing  condition  of  Roman  degeneracy.  In  the  fourth 
century  of  our  era  the  Hebrew  humanistics,  which  had  prevailed 
over  political  ineptitude  to  fit  that  tenacious  race  for  selection 
in  survival,  began  through  the  Christian  variant  of  its  religion 
to  affect  the  folk-feeling  of  the  Roman  peoples.  And  yet  the 
folk-customs  of  exposure  and  abandonment  declined  but  slowly; 
throughout  the  Middle  Ages  they  persisted  in  spite  of  efforts  at  re- 
ligious and  statutory  suppression.  . . .  Thus  by  degrees  the  barbaric 
folk-custom  of  infanticide  declined  before  the  Hebrew  humanistic  of 
infant  preservation,  until  the  children  whose  lives  it  had  saved  lived 
to  persecute  the  people  by  whom  it  had  been  engendered ;  among 
whom  yet  we  find  the  most  notable  examples  of  paternal  love. 

This  illustration  shows  the  salient  features  of  a  humanistic  as 
conducive  to  family  or  tribal  survival.  Its  origin  through  com- 
passion in  a  minor  folkgroup;  the  individual  stimulus  to  its 
ingroup  spread  through  the  efforts  of  leading  men  and  its  adop- 
tion as  a  religious  ideal;  its  further  expansion  through  the  ab- 
sorption of  its  folkgroup  as  a  well-dispersed  sub-group  in  a 
greater  folkgroup,  and  by  the  latter's  predilection  for  the  re- 
ligious system  of  the  former;  the  long-time  failure  of  law  and 
religion  to  suppress  a  folk-custom  founded  upon  environmental 
conditions;  and  upon  the  change  of  those  conditions  the  re- 
newal of  the  humanistic  propaganda  through  individual  effort 
and  institutional  device;  its  final  acceptance  as  folk-custom 
and  its  firm  hold   in  modern  morals. 

We  have  seen  how  the  higher  sympathetic  development  of 
groups  which  first  established  such  a  humanistic  gave  them  an 
advantage  over  other  groups  in  whom  it  was  deficient;  they 
became  increasingly  better  fitted  to  survive  and  correspondingly 
more  potent  in  folkgroup  activities.  For  the  success  of  a  tribe, 
both  externally  as  a  war  group  and  internally  as  a  peace  group, 
is  dependent  upon  the  strength  of  its  intergroup  sympathies; 
and  the  tribes  in  whom  those  sympathies  are  most  developed  are, 
therefore,  best  fitted  to  survive.  The  superior  brute  force  and 
more  selfish  folk-customs  of  the  Huns,  Goths  and  Vandals  did 
not  prevent  them  from  being  absorbed  and  obliterated  by  the 
milder  and  more  sympathetic  humanistic  ideals  of  the  European 
peoples  whom  they  subdued  and  amongst  whom  they  settled. 
Though  better  fighters  than  their  adversaries,  the  less  sympathetic 
Turks  have  not  been  able  to  stand  up  against  their  more  civilized 
Northern  neighbors  in  the  struggle  for  national  supremacy. 


408  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

Because  the  exercise  of  sympathy  promotes  the  survival  of  the 
folkgroup  in  the  struggle  for  existence,  the  latter,  therefore,  con- 
sciously accepts  and  enforces  some  of  the  humanistics  of  its  sub- 
groups in  the  same  way  that  it  does  its  folk-custom  and  between 
these,  except  as  to  origin,  difference  disappears ;  such  humanistics 
being  eventually  merged  in  folk-custom.  And  so  at  this  juncture 
the  sympathetic  forces  which  have  been  flowing  outward  from  the 
individual  to  the  group  react  and  flow  inward  from  the  group  to 
the  members.  The  group  now  exacts  socially  what  its  individual 
members  first  demanded. 


We  have  now  arrived  at  a  point  from  which  we  can  survey  the 
whole  field  of  conduct  as  influenced  by  nurtureways,  which  are 
the  three  modes  of  common  action  characteristic  of  mankind  as 
organized  in  the  groups  of  which  society  is  constituted. 

First  then,  the  folkways :  originating  in  animal  groups ;  char- 
acteristic of  the  most  primitive  folk-groups ;  unconsidered,  habit- 
ual, uniform  within  the  group ;  a  means  by  which  all  men  endeavor 
so  to  systematize  their  daily  life  as  to  escape  the  effort  of  a  con- 
stant exercise  of  choice  and  judgment  in  the  doing  of  acts  necessary 
to  continued  survival ;  motived  by  forces  of  hunger,  love,  vanity 
and  fear;  acquired  through  education  and  imitation;  instinct 
plus  acquisition. 

Next,  folk-customs  (or  mores)  derived  from  folk-ways  by  a 
conscious  choice  of  such  as  are  deemed  by  the  folkgroup  to  be 
connected  with  its  welfare.  They  are  the  product  of  a  newly 
arisen  group-consciousness.  To  conform  with  folk-customs  is 
right,  to  disregard  them  is  wrong.  They  are  favored  by  the 
folkgroup  through  the  suggestive  influence  of  folk-feeling  and  up- 
held with  pains,  penalties  and  rewards.  Folk-customs  are  folk- 
ways plus  groupal  welfare.  From  the  clan,  tribe  and  other  semi- 
civilized  social  phases  upward,  they  constitute  a  potent  factor  in 
fitting  folkgroups  for  selection  and  survival. 

The  third  mode  of  conduct  is  humanistic;  according  with 
ideals  originating  with,  and  propagated  by,  individuals  or  sub- 
groups so  as  to  modify  the  anti-individualistic  trend  of  many 
folk-customs.  They  are  the  offshoot  of  the  growing  sense  of 
self-consciousness.  Founded  on  compassion  for  others,  they  are 
gradually  diffused  within  the  folk-group  through  the  power  of 
sympathy  to  better  fit  its  possessors  to  survive  in  civilization. 
Characteristic  of  the  higher  social  phases  of  upper  tribal  and  na- 


Chap.   XV.]  SYMPA'THY  409 

tional  culture,  they  are  the  basis  of  the  higher  or  altruistic  morality. 
Humanistics  are  folk-customs  plus  compassion.  Humanistic 
ideals  flow  from  individuals  to  the  groups,  while  the  prohibitions 
and  precepts  of  folk-custom  flow  from  the  group  to  the  individual. 
Originating  in  the  family  and  promoting  its  survival,  they  are 
like  the  folkways  in  this,  that  their  sway  and  incidence  are  in 
inverse  ratio  to  the  size  of  the  group. 


III.    Institutions 

The  tj^ical  cycle  of  humanistic  evolution  is :  its  conception 
by  an  individual;  its  publication;  its  propagation  and  diffusion 
through  institutions.  Of  these  there  were  (a)  the  voluntary  sub- 
groups, (6)  a  political  institution,  the  legislature,  which  created 
(c)  a  third  institution,  a  law,  to  supply  motives  for  folkgroup  con- 
formity with  the  ideal.  Fourthly,  religion,  another  already  exist- 
ing institution,  may  become  conscious  of  the  growing  favor  ex- 
tended to  the  humanistic  by  its  leading  minds,  may  adopt  it  as  a 
part  of  its  spiritual  message;  and  so  make  itself  an  important 
vehicle  in  its  spread;  because  of  its  capacity  to  join  Fear  with 
Pity  as  motive  forces  for  the  acceptance  of  the  humanistic  ideal. 
When  by  such  means  a  humanistic  has  become  thoroughly  em- 
bedded in  folk-feeling,  it  begins  to  possess  the  attributes  of  a  folk- 
custom  and  is  consciously  recognized  as  essential  to  the  sympa- 
thies, if  not  to  the  welfare,  of  the  folkgroup. 

While  a  folk-custom  is  derived  from  folkways  of  which  the 
group  w^as  once  unconscious,  but  which  it  comes  to  feel  are  needful 
to  group  welfare,  i.e.,  the  adjustment  of  its  structure  to  its  en- 
vironment, a  humanistic  is  a  growth  from  some  person's  con- 
sciousness of  a  conflict  between  the  welfare  of  individuals  with  some 
folk-custom,  which  by  change  of  the  structure  or  of  the  environ- 
ment of  the  group  is  no  longer  needful  for  its  welfare. 

We  observe  further  that  the  mode  of  humanistic  growth  and 
diffusion  is  institutional  rather  than  moral ;  as  the  acme  of  con- 
scious nurtureways,  the  most  thoroughly  conscious  means  are  used 
both  for  their  spread  and  maintenance.  The  institutions  through 
which  we  find  them  working  are  in  part  voluntary  societies.  .  .  . 
The  service  that  such  institutions  perform  is  primarily  for  indi- 
vidual welfare  and  is  quite  distinct  from  that  rendered  to  group 
welfare  by  public  institutions  growing  directly  out  of  folk-custom 
such  as  public  assemblies,  courts,  jails,  police,  armies,  banks  of 


410  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

issue,  stock  and  produce  exchanges,  copartnerships,  trades  unions 
and  the  like. 

An  institution  is  therefore  an  organized  and  formal  artifice 
either  growing  out  of  folk-custom  or  formed  by  leading  minds  to 
promote  humanistics,  with  the  conscious  purpose  of  supplementing 
and  reinforcing  the  unorganized  and  almost  unconsciously  exerted 
*'  moral  "  forces  of  approbation  and  reprobation  by  which  folk- 
groups  endeavor  to  make  conduct  accord  with  their  folk-customs. 
The  device  in  its  developed  form  is  a  subgroup  created  by  private 
enterprise  or  commanded  by  public  enactment,  with  the  idea  of 
bringing  to  bear  concurrent  forces  of  co-operation,  organization 
and  persistence  in  support  of  the  uniform  practice  of  a  folk-custom 
or  to  enlarge  the  acceptance  of  a  humanistic  as  the  case  may  be. 

In  the  dim  twilight  of  primitive  social  structure,  we  can  always 
recognize  the  shadowy  form  of  some  joint  effort,  on  the  part  of 
the  folkgroup,  to  express  the  sentiments  growing  out  of  its  attempt 
to  imagine  and  interpret  the  powers  of  nature  by  which  it  is  sur- 
rounded. Savage  men  appreciate  fully  that  they  are  in  the  grip 
of  their  surroundings;  and  that  powers  which  they  cannot  fully 
understand  hold  in  strict  limitation  their  capacity  of  existence 
and  enjoyment.  The  human  mind  seems  always  to  try  to  explain 
these  phenomena,  and  as  it  has  only  recently  acquired  the  concept 
of  natural  forces  its  early  attempts  at  explanation  are  always 
along  the  lines  of  myth ;  that  is  to  say,  by  the  attribution  of  these 
powers  to  unseen  persons  not  unlike  ourselves,  supernatural,  but 
who  dwell  in  nature  and  control  its  forces.  This  line  of  develop- 
ment is  aided  by  a  tendency  of  the  savage  mind  to  attribute  an 
incorporeal  and  immortal  essence  to  the  dead  or  to  natural  objects ; 
a  state  of  mind  fostered  by  their  apparition  in  dreams;  and 
doubtless  superinduced  in  a  state  of  barbarism  by  folkways  of 
irregular  feeding  and  of  intermittent  periods  of  exercise  and  repose 
which  are  conducive  to  disorders  in  the  circulation  of  the  blood. 
For  primitive  man  to  believe  in  the  supernatural  is  in  fact  as 
rational  as  for  us  to  deny  it.  The  religious  and  scientific  rational 
processes  of  each  social  or  cultural  phase,  and  the  conduct  w^hich 
arises  from  them,  are  always  considered  superstitious  or  irrational 
by  men  who  have  progressed  onward  into  higher  phases. 

As  compared  to  human  powers,  the  powers  deemed  supernatural 
are  infinite  in  magnitude;  and  the  fear  they  inspire  leads  to  a 
desire  for  their  propitiation.  Sacrifices  and  worship  are  the 
efforts  to  express  that  propitiation.  The  example  of  increased 
efiiciency  gained  for  the  folkgroup  through  concurrence  in  its 


Chap.   XV.]  SYMPATHY  411 

folk-customs  must  have  been  apparent  to  men  in  the  early  phases 
of  the  social  structure,  and  some,  at  least,  saw  the  value  of  the 
fear  of  the  supernatural  already  established  in  their  folkways,  if 
institutionalized,  in  supplementing  the  less  organized  forces  of 
social  approbation  or  reprobation  by  which  they  were  endeavoring 
to  secure  uniformity  of  moral  conduct. 

In  their  turn  religious  institutions  made  use  of  the  same  prin- 
ciple of  concurrence.  Their  priests  early  observed  the  psychic 
value  of  the  rhythmic  expression  of  emotion,  many  times  mul- 
tiplied in  its  effect  upon  the  participant  when  manifested  at  the 
same  time  by  an  entire  congregation.  Churches  and  rituals  are 
therefore  effective  means  when  directed  to  moral  ends,  and  to  this 
purpose  a  large  part  of  their  service  is  applied  in  lower  social 
phases  where  other  institutional  forces  are  wanting. 

So  long  as  religion  can  sustain  in  men  the  idea  that  they  are 
accountable  to  powers  greater  than  themselves,  its  potency  in  the 
enforcement  of  moral  duties  is  enormous;  but  it  parts  with  this 
power  in  proportion  as  it  may  persist  in  the  maintenance  of  doc- 
trines not  in  accord  with  the  folk-feeling  of  the  time.  A  man  who 
denies  the  eflScacy  of  magical  rites  in  casting  out  devils  from  a 
sick  person,  or  doubts  the  value  of  a  sacrifice  to  the  Deity  in  in- 
suring a  harvest,  is  not  likely  to  be  much  impressed  with  the  moral 
teachings  of  those  who  insist  upon  the  acceptance  of  such  beliefs 
as  essential  to  salvation.  Xo  more  in  morals  than  in  dogma  does 
religion  represent  immutable  truth.  It  commends  at  one  period 
conduct  which  at  another  it  reprobates.   .   .   . 

Closely  allied  to  the  religious  type  of  institution  is  that  of  the 
political.  The  patriarchal  family  seems  early  to  have  proved 
its  better  fitness  for  survival  than  the  matriarchal  type ;  and  the 
tribal  exigencies  of  military  efficiency  tended  to  develop  the  chief 
or  king  as  its  leader  in  the  almost  constant  warfare  in  which  tribes 
are  engaged.  In  discovering  and  carrying  out  the  will  of  the  tribe, 
the  fundamental  political  folk-custom  of  assembly  or  mass  meeting 
was  evolved  from  the  clan-custom  previously  prevailing ;  and  from 
this  folk-custom  as  a  basis  arose  a  fundamental  type  of  political 
institution  such  as  the  landesgemeinde,  folkmote,  council  or  other 
form  of  deliberative  assembly;  to  meet,  discuss  and  deliberate 
over  the  tribal  needs  of  the  folkgroup,  and  to  provide  means  for 
defense  and  oft'ense.  The  outcome  of  such  needs  was  a  primitive 
secondary  institution,  the  army. 

By  the  time  that  nations  had  been  formed  from  the  tribal 
groups,  men  had  discovered  the  value  of  institutions  and  that 


412  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

they  could  be  organized  by  the  royal  authority  or  through  the 
fundamental  political  institution;  which  through  the  inconven- 
ience of  mass  meetings  for  a  scattered  population  soon  developed 
into  a  representative  assembly,  witenagemot,  diet,  folkthing  or 
parliament.  In  nations  peace-customs  develop  rapidly  through 
the  necessities  of  the  growing  industrial  life.  The  primitive 
remedy,  established  by  early  folk-custom  for  torts  or  wrongs 
committed  by  one  person  upon  another,  is  blood  revenge ;  a  right 
of  retaliation  by  the  victim's  family  or  his  kinship  group  exerted 
against  the  group  to  w^hich  the  offender  belonged.  Punishment 
for  theft,  for  instance,  was  originally  left  in  the  hands  of  the 
despoiled,  and  consisted  either  of  reparation  from  the  family  of 
the  thief  or  of  his  pursuit,  capture  and  death.  The  custom  of 
private  vengeance  or  blood  revenge  has  survived  even  in  civilized 
nations  amongst  some  subgroups,  as  is  exemplified  in  the  duel, 
not  yet  obsolete  in  Europe,  in  lynch  law,  or  in  the  blood  feuds  of 
our  own  Tennessee  mountains. 

Blood  revenge  and  its  resultant  feuds  were  both  destructive  of 
the  strength  in  war  of  the  folkgroups  wherein  it  was  most  prev- 
alent, and  in  a  high  degree  injurious  to  the  growth  of  industrial 
subgroups,  which  needed  internal  peace  for  the  practice  of  their 
crafts.  It  was  found  that  theft,  murder  and  other  personal  wrongs 
could  be  more  efficiently  suppressed  and  punished  by  the  folkgroup 
acting  as  a  unit,  through  constituted  tribal  authority.  Thus 
three  conditions  were  always  working  to  give  greater  military  and 
industrial  efficiency  to  tribes  who  used  this  means  of  eliminating 
the  right  of  private  vengeance  from  their  folk-custom.  The 
king's  justice,  at  first  directly  exercised,  did  the  people's  will  upon 
wrongdoers.  In  the  more  diffused  populations  of  the  larger  tribes 
the  king's  authority  must  needs  be  delegated  to  judges;  and  to 
procure  uniformity  of  justice,  statutes  defining  the  offense  and 
stating  the  punishment  established  by  folk-custom  were  instituted 
by  the  assembly  or  proclaimed  by  the  king. 

In  its  primitive  form,  therefore,  a  statute  of  law  is  only  a  reduc- 
tion to  writing  of  a  folk-custom.  For  peaceable  and  orderly 
enforcement  over  a  large  territory  it  involves  the  institution  of  a 
law  court,  with  judges  to  hear  complaints  and  to  give  judgments ; 
with  sheriffs  or  jailers  to  execute  them;  and  behind  all  a  king 
and  army  providing  an  irresistible  power  to  enforce  the  decisions 
rendered.  By  such  institutions  was  the  king's  justice  substituted 
for  blood  revenge ;  an  orderly  for  a  disorderly  process  of  punish- 
ment;   and  each  of  the  dominant  elements  in  the  folkgroup  was 


Chap.   XV.]  SYMPATHY  413 

given  what  it  needed  —  greater  efficiency  to  the  war  group  in  war, 
and  peace  conditions  for  the  growing  group  of  industrial  workers. 
The  penalties  of  the  written  law  and  of  the  unwritten  folk-custom 
were  alike ;  but  carried  out  by  the  irresistible  and  impartial  force 
of  the  folkgroup  instead  of  by  the  angry  hand  of  the  victim  or  his 
clan. 

By  degrees  the  association  of  legal  remedies  and  penalties  with 
offenses  against  the  person  or  against  his  property  led  to  their 
recognition  as  crimes  against  the  peace  of  the  folkgroup  instead 
of  wrongs  against  the  victim  or  his  clan.  In  place,  therefore, 
of  drawing  the  complaint  for  a  wTong  done  to  the  aggrieved  person 
the  action  is  brought  against  the  offender  in  the  name  of  the  State 
itself,  which  alone  assumes  responsibility  for  the  punishment 
of  the  offender.  The  body  of  folk-custom  which  regulates  the 
relations  of  the  State  with  its  citizens  is  known  as  public  law  and 
is  primarily  a  code  declaring  what  are  the  peace-customs  of  the 
folkgroup,  set  down  in  writing  so  as  to  avoid  dispute  and  enforce 
uniform  penalties.  In  the  course  of  time  public  law  has  been 
extended  by  statutes  enacted  by  royal  authority  or  by  public 
assemblies,  to  cover  many  other  moral  and  economic  relations  of 
the  citizens  to  the  State  beside  breaches  of  peace-custom,  but  it 
remains  a  written  law. 

The  discovery  of  the  potency  of  legal  institutions  in  enforcing 
the  criminal  law  led  to  their  use  in  another  direction.  If  one  class 
of  folk-custom  could  be  reduced  to  writing  and  enforced  by  the 
courts,  why  not  others?  In  the  almost  constant  intertribal 
conflicts  many  were  the  victories  that  led  to  the  conquest  of  one 
folkgroup  by  another ;  and  when  two  had  intermingled  there  was 
always  a  question  as  to  which  folk-custom  should  prevail.  Tiiis 
confusion  led  to  conflicts  between  two  bodies  of  folk-customs  in 
which  it  often  happened  that  the  conquerors  conceded  the  supe- 
riority of  some  of  those  of  the  conquered  as  well  as  insisted  upon 
the  observance  of  some  of  their  own.  Disputes  arose  as  to  the 
prescribed  conduct  which  according  to  folk-custom  one  member 
of  the  consolidated  folkgroup  had  the  right  to  expect  from  one  of 
his  fellows.  Once  courts  had  been  established  for  the  enforcement 
of  the  king's  peace,  the  machinery  which  they  supplied  could 
naturally  be  used  to  settle  a  dispute  of  this  nature,  with  the  result 
that  their  jurisdiction  was  extended  from  the  public  law  which 
they  already  enforced  to  that  of  private  law. 

While  public  law  is  the  body  of  folk-custom  regulating  the 
relations  of  citizens  and  the  State,  private  law,  on  the  other  hand, 


414  FACTORS  OF   LEGAL  EVOLUTION  [Part  II. 

is  the  body  of  folk-custom  regulating  the  conduct  of  citizens 
toward  each  other  together  with  the  principles  by  which  courts 
have  endeavored  to  classify  them.  In  the  main,  private  law  is 
unwritten  —  and  the  dispute  of  the  contestants  is,  therefore,  as 
to  what  conduct,  according  to  folk-custom,  each  has  a  reasonable 
right  to  expect  from  the  other  —  and  the  ideal  of  such  conduct 
becomes  generalized  in  men's  minds  under  the  names  of  justice, 
equity  or  right. 

This  unwritten,  or  as  it  is  known  among  Anglo-Saxon  peoples, 
common,  law  is,  therefore,  well  described  as  "  the  product  of  the 
wisdom,  counsel  and  experience  of  many  ages  of  wise  and  observ- 
ing men  " ;  and  attempts  to  write  and  codify  it  have  in  large 
measure  resulted  in  confusion.  Through  its  derivation  and 
capacity  for  enforcement  through  evidence  and  discussion  in  the 
courts,  the  common  law,  especially  in  great  matters,  is  reasonably 
approximate  in  force  and  flexibility  to  folk-feeling  itself.  On  the 
other  hand,  it  is  quite  beyond  the  capacity  of  the  human  intellect 
to  write  down  rules  which  shall  take  into  account  the  infinite 
variety  of  human  conduct  covered  by  the  folk-custom  of  all  the 
groups,  and  which  either  has  happened,  is  happening  or  may 
happen.  And  equally  is  it  impossible  to  construct  a  code  flexible 
enough  to  keep  pace  with  the  changes  which  are  wrought  in  folk- 
custom  by  the  continually  recurring  changes  in  the  structure  and 
environment  of  the  folkgroup  and  of  its  constituent  subgroups. 

Existing  codes  of  private  or  common  law,  such  as  have  been 
attempted  in  the  countries  which  derive  their  jurisprudence  from 
the  Romans,  can  cover  only  a  small  fraction  of  the  conduct  pre- 
scribed by  folk-custom.  The  incidents  treated  are  mainly  those 
about  which  disputes  have  already  occurred,  or  which  have  been 
occasioned  by  conflicts  between  the  folk-customs  of  different 
folkgroups  merged  by  conquest  or  colonization.  The  laws  of 
Moses,  Solon  and  Lycurgus  —  the  earliest  of  codes  —  have  to 
do  exclusively  with  private  law  and  had  the  purpose  of  effecting 
the  adjustment  of  conflicts  of  interest  which  had  arisen  between 
different  subgroups  in  their  respective  states.  The  codes  of  the 
Barbarians  compiled  in  the  fifth  and  sixth  centuries  adjusted  the 
relations  between  the  provincial  Romans  and  the  rude  tribes  by 
whom  they  had  been  overrun ;  so  that  the  conduct  of  the  mem- 
bers of  the  subject  folkgroup  toward  each  other  could  still  be  regu- 
lated by  their  milder  folk-customs,  while  their  demeanor  toward 
the  master  folkgroups  was  controlled  by  the  Salic,  Gothic  or 
Hunnish  law  imposed  by  the  conquering  race. 


Chap.  XV.]  SYMPATHY  415 

Law  and  its  Courts,  therefore,  are  institutions  whose  main 
function  is  to  establish  in  a  more  or  less  fixed  form,  precepts  drawn 
from  folk-custom.  They  prescribe  for  the  members  of  the  folk- 
group  courses  of  conduct  in  accordance  with  folk-custom  and  fix 
penalties  for  nonconformance.  They  are  primarily  devices  of 
the  folkgroup  (a)  for  determining  what  is  folk-custom,  (6)  for 
judging  whether  conduct  accords  or  disagrees  with  folk-custom, 
(c)  for  substituting  folk-penalties  in  place  of  private  vengeance 
in  case  of  transgression,  and  (d)  for  furnishing  its  members  with 
organized  and  uniform  series  of  motives,  additional  to  the  ordinary 
moral  approvals  and  condemnations  exercised  through  public 
opinion,  for  conformity  with  its  will. 

The  class  of  wrongful  conduct  initially  made  criminal  by  statute, 
including  such  offenses  as  murder,  arson,  rape,  burglary  and  the 
like,  is  known  to  jurists  as  mala  in  se  —  that  is  to  say,  it  would  be 
condemned  by  folk-custom  even  if  there  were  no  written  laws. 
Another  class  is  that  in  which  are  placed  acts  not  so  condemned 
and  only  wrong  because  the  law  has  made  them  so.  Such  acts 
in  law  are  known  as  mala  prohibita.  In  the  course  of  time  some 
of  them,  like  smuggling,  piracy,  perjury  and  drunkenness,  while 
originally  regarded  with  indifference,  have  become  to  be  generally 
condemned  by  folk-custom.  Others,  such  as  relate  to  liquor 
selling,  trespass,  profanity,  building  regulations,  Sunday  obser- 
vance, speed  limits,  etc.,  are  either  statutized  class-custom  or 
artificial  creations  of  the  legislature;  as  such  but  imperfectly 
adopted  by  folk-custom,  and  their  infractions  not  necessarily 
recognized  as  morally  wrong.  To  classify  them  we  might  almost 
adopt  the  continental  term  and  call  them  contraventions. 

The  supposed  potency  of  written  laws  has  given  rise  to  the 
superstition,  peculiarly  characteristic  of  American  politics,  that  a 
folk-custom  can  be  created  by  any  man  if  he  can  only  wTite  it 
into  a  law  and  get  it  enacted  by  a  legislature.  Nevertheless,  such 
efforts  to  accomplish  a  change  of  conduct  by  writing  and  enacting 
laws  not  declaratory  of  existing  folk-custom  are  largely  unsuccess- 
ful, even  when  supported  by  the  party  in  power  of  the  day.  For 
strong  as  is  the  institution  of  the  law,  it  is  weak  as  compared  with 
the  tremendous  force  of  folk-custom,  which  rests  successively  on 
ideals  ingrained  in  man's  sentimental  nature  by  life-long  moral 
training,  on  the  century-long  folkway  habits,  and  on  the  instincts 
inherited  from  sources  anterior  to  man. 


416  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

It  is  characteristic  of  both  rehgion  and  law,  as  moral  adjuncts, 
that  they  generally  lag  behind  the  folk-custom  from  which  they 
are  derived.  They  are  less  sensitive  to  change  in  the  ideals  of 
folkgroup  welfare  than  is  the  folk-feeling,  or  public  sentiment, 
which  is  everywhere  recognized  as  the  most  potent  and  flexible  of 
all  incitations  to  conduct.  While  in  the  main  there  is  agreement 
between  all  these  potencies  as  to  what  conduct  should  be  expected 
of  men  in  given  situations,  yet  there  is  a  twilight  zone  of  acts  in 
which  the  commands  of  one  agency  may  be  more  or  less  contra- 
dictory to  those  of  another. 


G.  — POLITICAL   FACTORS 

Ch.4j>ter  XVI 

THE   CONSTITUTIONAL  FACTOR  OF   LEGAL 
DEVELOPMENT ' 


I.  The  Vera  Causa  of  Roman 
Law  —  Absence  of  Religion, 
Politics,  and  Ethics  —  Practi- 
cal Causes  —  Infamia. 


11. 


Roman  Law  and  Modern  Evolu- 
tionist Theories. 


I.    The  Vera  Causa  of  Roman  Law  —  Absence  of  Religion, 
Politics,  and  Ethics  —  Practical  Causes  —  Infamia 

The  most  superficial  glance  at  the  development  of  western 
civilization  cannot  fail  to  notice  that  certain  nations  succeeded 
in  maturing  some  branches  of  art  to  a  degree  of  perfection  un- 
known amongst  other  peoples.  Thus  sculpture  was  brought  to  its' 
highest  pitch  of  perfection  by  the  Greeks ;  painting  by  the  Ital- 
ians and  Spaniards;  music  by  the  Germans.  Science,  on  the 
other  hand,  seems,  to  use  the  words  of  Goethe,  to  be  a  fugue,  the 
successive  parts  of  which  are  formed  by  the  contributions  of  all 
nations,  and  while  some  nations  may  boast  a  greater  number  of 
meritorious  scientists  than  others,  no  nation  of  western  civiliza- 
tion so  completely  excels  its  competitors  in  the  domain  of  science, 
as  do  some  in  the  realm  of  art. 

To  this  general  remark  there  is  one  exception,  and  one  only, 
namely,  Roman  law. 

Roman  law  as  taught  in  the  writings  of  the  Roman  jurists 
is  a  science,  a  science  of  great  perfection,  a  science  so  perfect  as 
to  almost  approach  the  harmonious  finish  of  art.  But  Roman 
law  is  not  only  a  marvelous  system  of  the  legal  customs  and  con- 
cepts of  the  Romans;    its  value  is  not  restricted  to  students  of 


1  [By  Emil  Reich. 

Reprinted   from    "  Graeco-Roman 
at  the  University  of  Oxford) 
65-72.1 

417 


Institutions"    (Lectures  delivered 
Parker  and  Co.,  Oxford,  1890,  pp.  3-28, 


418  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

Roman  law;  it  has  an  absolute  value  for  students  of  any  law 
whatever.  In  other  words,  the  Romans  outstripped  all  other 
nations,  both  ancient  and  modern,  in  the  scientific  construction 
of  legal  problems.  They  alone  offer  that  curious  example  of  one 
nation's  totally  eclipsing  the  scientific  achievements  of  all  other 
nations. 

By  law,  however,  we  here  understand  not  all  branches  of  law, 
as  constitutional,  criminal,  pontifical,  and  private  law,  together 
with  jurisprudence.  By  Roman  law  we  mean  exclusively  Roman 
private  law.  The  writings  of  Roman  jurists  on  constitutional 
and  criminal  law  have  been  superseded  and  surpassed  by  the 
writings  of  more  modern  jurists.  Their  writings  on  questions  of 
private  law,  on  the  other  hand,  occupy  a  unique  place ;  they  are, 
to  the  present  day,  considered  as  the  inexhaustible  fountain-head, 
and  the  inimitable  pattern  of  the  science  of  private  law.  This 
statement  stands  in  need  of  no  evidence;  it  is  conceded  on  all 
hands.  It  stands,  however,  in  need  of  an  historical  and  tech- 
nical explanation. 

In  other  words,  it  is  perfectly  legitimate  to  ask,  why  were  the 
Romans  the  only  nation  of  western  civilization  that  could  bring 
forth  a  scientific  system  of  private  law  ? 

This  question  is  all  the  more  legitimate,  because  the  Romans, 
of  all  nations,  were  the  least  likely  to  produce  a  scientific  system 
of  private  law.  Roman  history  down  to  Augustus  had  two  main 
features :  (1)  the  conquest  of  the  world  round  the  Mediterra- 
nean; (2)  the  internal  strifes  for  constitutional  rights  and  priv- 
ileges, first  between  the  patricians  and  plebeians,  and  afterwards 
between  the  oligarchical  and  democratical  classes.  Now  the 
wars  of  the  Romans  could  not  have  been  the  foster-earth  of  a 
science  of  private  law.  The  continuous  constitutional  strifes 
were,  by  their  very  nature,  not  unfavorable  to  the  rise  of  jurists, 
chiefly  because  the  great  orators  and  lawyers  of  Rome  represented 
at  once  the  journalistic  and  parliamentary  powers  of  our  days. 
Men  like  Porcius  Cato,  Hortensius,  or  Cicero  united  in  themselves 
the  parliamentary  power  of  a  modern  Gladstone  with  the  vast 
influence  of  a  newspaper  like  "  The  Times."  They  were  talking 
*'  leaders."  Hence  discussions  of  constitutional  questions  were 
a  matter  of  daily  occurrence,  and  thus  we  could  not  feel  astonished 
had  the  Roman  jurists  left  us  a  perfect  science  of  constitutional 
law. 

This,  however,  is  not  the  case.  Their  writings  on  constitutional 
law  are  immeasurably  below  their  writings  on  private  law.     In 


Chap.   XVI.]  THE   CONSTITUTIONAL   FACTOR  419 

fact,  our  astonishment  at  the  Romans  having  been  the  greatest 
writers  on  the  science  of  private  law  becomes  intensified  the  more 
we  think  of  it. 

Private  law  feeds  on  commercial  and  industrial  relations;  the 
Romans  held  commerce  in  contempt,  as  all  military  peoples  do, 
and  industrial  enterprises  were  given  over  to  slaves.  The  practice 
of  private  law  goes  with  so  many  annoyances  and  inconveniences 
that  nobody  can  be  expected  to  devote  much  time  to  the  carrying 
on  of  another  man's  lawsuits,  unless  he  is  paid  for  it :  the  Romans, 
until  very  late,  never  paid  fees  to  their  jurists.  The  cultivation  of 
a  science  is  generally  the  work  of  a  profession,  whose  members 
have  gone  through  a  regular  course  of  general  mental  training, 
and,  more  particularly,  with  regard  to  their  special  science :  the 
real  founders  of  the  science  of  Roman  law  were  unprofessional 
people  who  did  not  cultivate  the  science  of  law  to  the  exclusion 
of  all  other  avocations.  Besides,  the  Romans  never  cultivated 
any  science  with  great  zeal  or  success.  Science  they  took  at 
second-hand  from  the  Greeks.  For  the  Greeks  were  the  scientists 
of  the  world. 

The  cities  that  studded  the  shores  of  the  ^gaean,  Tyrrhenian, 
and  Ionian  seas  poured  forth  ever-increasing  numbers  of  pro- 
found thinkers,  who  contrived  to  marshal  into  scientific  order, 
facts  of  the  most  divergent  descriptions.  The  disconnected 
experiences  and  observations  of  butchers,  hunters,  fishers,  and 
bird-catchers  they  dexterously  and  most  ingeniously  welded  into 
systematic  views  of  comparative  anatomy.  The  incoherent  and 
stray  glimpses  of  plant-life  caught  by  the  gardener,  florist,  and 
forester  they  collected  into  luminous  views  on  botanical  phe- 
nomena. The  intricate  and  irregular  verbal  and  syntactical 
phenomena  of  their  marvelous  idioms  they  succeeded  in  arrang- 
ing according  to  comprehensive  principles.  And  likewise  with 
other  phenomena,  astronomical,  mechanical,  mathematical,  and 
political.  It  is  needless  to  enumerate  the  immortal  names  of 
Thales,  Democritus,  Pythagoras,  Aristotle,  Archimedes,  Conon, 
Euclid,  Theophrastus,  Hipparchus,  Heron,  Diophantus,  and  all 
the  other  glories  of  Greek  science. 

Jurists,  scientific  jurists  alone,  the  Greeks  never  had. 

The  Greeks  construed  sciences  of  all  kinds  of  phenomena, 
legal  phenomena  of  civil  life  excepted.  Their  wonderful  gift  for 
systematic  thinking  failed  them  in  this  one  respect.  Not  even 
the  laborious  J.  A.  Fabricius  could  muster  up  more  than  a  very 
small  list  of  Greek  jurists,  in  the  Roman  sense  of  the  word,  that 


420  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

is  to  say,  jurists  practising  private  law.  Read  the  speeches  of 
Isseos  or  Isocrates,  and  compare  their  conception  and  treat- 
ment of  law  with  similar  passages  in  Cicero's  Orations,  for  instance, 
the  Oration  for  Csecina,  or  Quintius,  or  Murena,  and  the  vast 
difference  between  Greek  and  Roman  private  law  will  strike  you 
*most  forcibly. 

In  other  words,  the  Greeks,  who  were  the  teachers  of  the  Romans 
in  every  branch  of  science  and  philosophy,  were  entirely  unable 
to  vie  with  their  pupils  as  to  legal  science.  Whence  this  remark- 
able and  unexpected  superiority  of  the  Romans  ?  How  and  why 
could  they  excel  the  most  gifted  nation  of  all  ages  in  the  cultiva- 
tion of  a  science,  the  subject-matter  of  which  was  as  familiar  to 
the  Greeks  as  to  the  Romans?  For  the  Greeks  were  notorious 
pettifoggers,  and  there  was  scarcely  a  week  but  what  a  Greek  took 
part  in  judicial  proceedings,  either  as  one  of  the  numerous  judges, 
or  as  a  witness,  or  as  one  of  the  contending  parties. 

And  why  did  the  Jews  not  construct  a  generally  valuable  system 
of  private  law?  They,  as  .well  as  the  ancient  Egyptians,  As- 
syrians, Icelanders,  and  Irish,  had  accumulated  vast  piles  of 
legal  casuistics,  and  the  discussion  of  questions  concerning  pri- 
vate law,  together  with  religious  issues,  formed  the  bulk  of  the 
studies  eagerly  pursued  by  Egyptian  priests,  Jewish  rabbis, 
Irish  "  Brehons  ",  and  Iceland  wise  men.  Why,  then,  did  they 
not  succeed  ? 

For,  make  allowances  as  many  as  you  may,  the  systems  of 
private  law,  as  cultivated  among  the  nations  just  mentioned, 
are  essentially  inferior  to  the  system  taught  in  the  writings  of 
Roman  jurists.  You  will  ask,  perhaps,  in  what  then  does  this 
vaunted  superiority  consist?  Are  the  Roman  jurists  so  much 
more  sagacious  or  shrewd  than  the  jurists  of  other  nations  ?  Is 
their  practical  sense  so  much  stronger,  or  do  they  combine  theo- 
retical comprehensiveness  with  practical  adroitness  in  a  superior 
way? 

It  would  be  simply  unfair  to  deny  the  exquisite  keenness  and 
penetration  in  the  juristical  portions  of  the  Thalmud  of  the  Jews, 
made  accessible  through  the  labors  of  M.  Rabbinovicz;  the 
Gragas  of  the  Icelanders ;  or  the  amazing  casuistics  of  the  Brehon 
books.  Nor  can  we  discover  any  serious  deficiency  in  their  sense 
of  practical  needs.  They  also  abound  in  refined  principles,  in 
systematic  divisions,  sub-divisions,  and  sub-subdivisions.  And 
yet  all  this  is  productive  of  no  result  of  generally  available  ex- 
cellence.    We  read  the  ancient  Brehons,  because  we  take  great 


Chap.   XVI.]  THE  CONSTITUTIONAL  FACTOR  421 

historical  interest  in  Irish  institutions.  But  we  never  so  much 
as  think  of  grafting  law-principles  of  the  ancient  Brehons  on  the 
body  of  our  modern  law,  nor  do  we  apply  to  them  for  ready  counsel 
and  advice  in  any  practical  difficulty  of  the  bar  or  the  bench. 

The  Romans,  on  the  other  hand,  stand  to  us  in  intimate  rela- 
tion ;  their  legal  wisdom  is  a  living  wisdom,  a  living  factor  in 
our  life.  Marcus  Antistius  Labeo,  Capito,  Gains,  Papinianus, 
Paulus,  or  Ulpian  are  still  walking  amongst  us,  ready  to  help  us 
in  any  practical  difficulty,  and  capable  of  assisting  us  whenever 
we  fail  to  make  up  the  feud  between  theory  and  practice.  The 
works  of  the  Greek  scientists  and  thinkers,  although  indicative 
of  an  incomparably  greater  power  of  mind  than  the  works  of  the 
Roman  jurists,  are  now-a-days  obsolete.  We  rarely  or  never 
use  them  as  text-books,  or  as  current  reference  books  of  science. 
The  works  of  the  Roman  jurists,  on  the  other  hand,  still  continue 
to  be  the  text-books  of  students  of  law^  all  over  Europe  and  Amer- 
ica.    In  what  then  does  the  specific  excellence  consist  ? 

It  is  of  course  extremely  difficult  to  reduce  the  characteriza- 
tion of  a  complex  system  of  law  to  a  few  words.  But  such  is 
the  pre-eminent  excellence  of  Roman  private  law  that  it  is  more 
or  less  easily  contrasted  with  the  system  of  private  law  of  other 
nations.  Roman  or  civil  laic  is  the  only  system  of  private  law  that 
has  not  been  unduly  influenced  by  the  irrelevant  factors  of  religion, 
politics,  and  ethics. 

Take  the  private  law  of  any  other  nation.  Let  us  begin  with 
English  law.  We  all  know  that  English  common  law  has  been 
largely  influenced  by  the  political  structure  of  English  society. 
The  English  law  of  real  property,  for  instance,  is,  in  the  words 
of  ]\Ir.  Kenelm  Digby,  its  distinguished  historian,  a  "  congeries 
of  ancient  custom  and  mediaeval  and  modern  innovation."  But 
what  were  those  ancient  customs  and  mediaeval  innovations 
caused  by?  By  the  political  system  of  feudalism.  The  law 
of  acquiring  or  conveying  property  was  strictly  and  immediately 
depending  on  the  political  standing  of  the  owner  or  purchaser. 
The  pervading  principle  of  the  law  of  real  property,  as  it  developed 
in  England,  was  this:  "  Nulle  terre  sans  seigneur";  that  is  to 
say,  the  law  of  real  property  was  pervaded  by  a  political  principle. 
Consequently  the  strictly  legal,  or  to  apply  an  unusual  but  very 
apt  expression,  the  strictly  ''  civilistic  "  development  of  the  law 
of  real  property  was  hampered  and  interfered  with  from  the  very 
beginning.  An  element  was  brought  into  it  that  was  irrelevant, 
because  extraneous. 


422  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

The  Romans  never  suffered  their  legal  institutions  to  be  inter- 
larded with  extraneous  matter.  From  the  earliest  times  down 
to  the  age  of  the  emperors,  the  Romans  had  a  political  institution 
that  might  have  lent  itself  very  easily  to  an  undue  interference 
with  institutions  of  private  law,  after  the  manner  of  feudalism. 
I  mean  the  Roman  "  clientela."  Roman  clients  stood  to  their 
"  patroni  "  in  a  relation  not  unlike  that  of  a  feudal  tenant  to  his 
lord.  They  held  estates  from  them,  they  were  obliged  to  do 
homage  and  to  discharge  some  of  the  duties  implied  in  "  feudal 
incidents."  All  this  surely  might  have  easily  been  used  as  a 
means  to  unduly  influence  the  development  of  the  Roman  law 
of  real  property.  It  might  have  been  used  to  create  those  semi- 
complete  forms  of  property  with  which  English  law  abounds,  and 
which  go  to  make  the  English  law  of  real  property  a  most  intricate 
law.  But  nothing  of  the  kind  happened.  The  Roman  concept 
of  real  property,  or  rather  of  property  in  general,  was  nowise  in- 
fluenced by  the  grants  of  land  so  frequent  amongst  patrons  and 
clients,  and  the  legal  construction  of  these  grants,  namely,  the 
'^  precaria",  exercised  no  influence  whatever  on  the  features  of 
"  dominium  "  or  "  possessio." 

Or  take  another  great  political  institution  of  the  Romans :  I 
mean  the  two  classes  of  patricians  and  plebeians.  Nothing  is 
more  patent  than  the  constant  struggle  of  the  plebeians  with  the 
patricians,  and  the  marked  difference  in  their  political  standing. 
Did  this  well-known  difference  exercise  any  influence  on  the  pri- 
vate law  of  the  Romans  ?  Do  we  ever  hear  of  an  "  actio  "  or 
private  right  being  denied  to  a  Roman  because  he  is  a  plebeian  ? 
There  is  no  trace  either  in  the  XII  Tables^  or  in  any  later  legisla- 
tion, of  ^  any  thoroughgoing  or  even  important  difference  between 
the  plebeians  and  patricians  as  to  "  civil  "  rights  (taking  the  word 
*'  civil  "  in  its  Roman  sense)  after  the  middle  of  the  fifth  century 
B.C.  A  plebeian  could  acquire  real  property,  contract  obligations, 
marry,  and  will  his  property  according  to  the  same  principles  of 
private  law  as  a  patrician.  Their  contentions  and  conflicts  re- 
ferred to  political  issues.  It  never  occurred  to  them  to  alter  the 
frame  of  their  private  law  on  the  strength  of  political  differences. 
Consequently  private  law  had  not  to  suffer  from  an  irrelevant 
mixture  of  extraneous  matter,  and  instead  of  being  warped,  as  it 
were,  in  its  development  by  the  alien  element  of  politics,  it  freely 
pursued  its  natural  course,  and  thus  reached  a  higher  perfection. 

Roman  law  was  likewise  free  from  an  undue  influence  of  re- 
ligion.    What  vast  changes  may  be  wrought  in  the  character  of 


Chap.  XVI.]  THE   CONSTITUTIONAL  FACTOR  423 

private  law  by  an  undue  influence  of  religion,  or  rather  theology, 
we  can  clearly  see  in  the  law  of  the  Mohammedans,  or,  more 
correctly  speaking,  in  the  systems  of  the  various  sects  of  the 
]\Iohammedans.  There  are  three  gigantic  systems  of  private  law : 
The  Roman,  the  English,  and  the  Mohammedan.  Each  of  them 
rules  several  hundreds  of  millions  of  people.  But  one  glance  at 
the  sources  of  Mohammedan  private  law  will  satisfy  us  as  to  the 
reason  of  its  inferiority  compared  to  Roman  law.  The  order  of 
authorities  to  be  observed  by  a  Mohammedan  judge  is  (1)  the 
Kooran,  (2)  the  Soonut,  or  Traditions,  (3)  the  concurrent  opin- 
ions of  the  Sahabah,  or  Comparison  of  the  Prophet,  (4)  the  con- 
current opinion  of  the  Tabieen,  or  their  immediate  successors, 
(5)  opinion  of  Abu  Huneefa,  Aboo  Yoosuf,  and  Mohammed, 
(G)  opinion  of  modern  lawyers,  (7)  Kiyas,  or  analogical  reason.^ 
This  of  course  refers  to  judges  applying  the  law  according  to  Abu 
Huneefa.  But  this  *'  sect",  together  with  all  other  "  sects", 
recognize  the  Kooran,  the  Sahabah,  and  the  Tabieen  as  their 
fundamental  source.  In  other  words,  they  all  agree  that  their 
theological  code  is  the  foundation  of  their  legal  concepts. 

It  is  needless  to  dwell  on  the  total  irrelevancy  of  such  an  in- 
fluence. Theology,  while  perfectly  legitimate  in  its  own  domain, 
can  claim  no  legitimate  influence  over  private  law,  no  more  than 
private  law  can  over  theology.  Thus  every  Mohammedan  law- 
concept  is  honeycombed  in  form,  as  it  were,  or  rather  stinted  in 
its  growth  by  the  conflicting  influence  of  theological  ideas. 

The  Romans,  on  the  other  hand,  never  allowed  their  religious 
concepts  to  interfere  with  the  fundamental  features  of  their  pri- 
vate law.  The  Sibylline,  or  sacred  books  of  the  Romans,  were  in 
constant  use  among  them ;  but  only  for  political  purposes.  The 
Roman  Senate  frequently,  nay  continually,  charged  certain 
officers  "  ad  libros  ire",  to  consult  the  sacred  books,  just  as  Mo- 
hammedan nations  refer  to  the  Kooran.  But  it  never  occurred 
to  the  senate  to  consult  these  mysterious  theological  books  on 
questions  of  private  law.  And  thus  the  private  law  of  the  Romans 
remained  unbiased  by  an  irrelevant  influence  that  has  impeded 
the  growth  of  a  science  of  Mohammedan  law;  and  likewise  the 
scientific  development  of  the  private  law  of  the  Hindoos  and 
Jews.  For  it  is  evident  on  the  face  of  the  matter,  that  if  a  system 
of  private  law  is  constantly  interfered  with  by  elements  alien  to 
the  nature  of  private  law,  its  development  must  needs  be  retarded 
and  driven  into  unprofitable  directions. 

1  N.  E.  Baillie,  "Moh.  Law  of  Sale",  p.  21. 


424  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

I  have  finally  to  say  a  few  words  about  the  relation  of  Roman 
private  law  to  ethics.  Ethical  and  moral  ideas  have  largely,  and 
often  unduly,  influenced  the  unrestrained  growth  of  private  law. 
For  although  private  law  has  close  relations  with  ethics,  it  con- 
tains and  comprises  leading  ideas  distinctly  different  from  ethical 
ideas.  Our  obligations  to  a  certain  individual  are  quite  different 
when  arising  from  motives  of  friendship,  and  when  caused  by  the 
duties  of  a  legal  contract.  In  fact  the  domain  of  private  law  is 
widely  separated  from  the  domain  of  ethics.  Ethical  obligations 
the  Romans  named  "  officia",  and  they  had  special  treatises  on 
them  in  contradistinction  to  the  obligations  of  law.  But  they 
never  confounded  the  needs  and  powers  of  ethical  with  those  of 
jural  relations.  And  thus  they  contrived  to  develop  the  prin- 
ciples of  their  private  law  undisturbed  and  unbiased  by  factors 
of  an  alien  kind. 

It  is  therefore  that  their  legal  principles  have  that  comprehen- 
siveness and  thoroughgoing  character  which  is  the  great  glory 
of  Roman  law.  A  Roman  lawyer,  and  even  a  modern  French 
or  German  lawyer  —  French  and  German  private  law  being  es- 
sentially Roman  law  —  were,  and  are,  never  obliged  to  ransack 
whole  libraries  of  precedents  to  find  the  law  covering  a  given 
case.  They  approach  a  case  in  the  manner  of  a  physician ;  care- 
fully informing  themselves  of  the  facts  underlying  the  case,  and 
then  eliciting  the  legal  spark  by  means  of  close  meditation  on  the 
given  data  according  to  the  general  principles  of  their  science. 
The  Corpus  Juris  Civilis  is  one  stout  volume.  This  one  volume 
has  sufficed  to  cover  billions  of  cases  during  more  than  thirteen 
centuries.  The  principles  laid  down  in  this  volume  will  afford 
ready  help  in  almost  every  case  of  private  law,  because  they  ema- 
nate from  private  law  alone,  and  have  no  tincture  of  non-legal 
elements.  The  law  of  the  English,  for  instance,  is  so  intimately 
connected  with  English  feudalism  and  the  constitution  of  England, 
that  unless  a  country  possessed  the  same  kind  of,  or  a  similar  con- 
stitution, it  could  not  adopt  one  line  of  English  law.  The  private 
law  of  the  Romans  is  connected  with  none  of  their  peculiarly 
Roman  institutions,  and  consequently  it  fits  the  law  of  any  nation, 
provided  this  nation  wants  a  science  of  private  law,  which  is  not 
always  the  case. 

This  statement  seems  to  lack  all  historical  evidence.  One 
hour's  reading  in  the  Corpus  Juris  seems  to  show  us  any  number 
of  peculiarly  Roman  institutions  that  influence  largely  the  struc- 
ture of  Roman  private  law.     Such  is,  for  instance,  Roman  slavery. 


Chap.   XVI.]  THE   CONSTITUTIONAL   FACTOR  425 

Now-a-days  we  have  no  slaves,  and  thus  one  might  think  that  the 
wonderfully  refined  speculations  of  Roman  jurists  on  questions 
connected  with  slave-law  —  one  half  of  the  striking  "  fragments  " 
of  Africanus  treat  of  such  cases  —  are  all  obsolete  and  can  have 
no  bearing  on  our  modern  private  law.  I  venture  to  state  that 
the  number  of  cases  where  slaves  are  brought  into  play  forms  over 
sixty  per  cent  of  all  cases  of  the  Corpus  Juris. 

Now  according  to  what  we  notice  in  our  own  law,  we  should 
expect  that  no  modern  civilian  will  devote  his  time  to  the  intricate 
questions  of  Roman  slave-law,  Roman  "  patronatus",  Roman 
''  libertini ",  etc.,  etc.,  just  as  no  English  practical  jurist  will 
devote  his  time  to  a  laborious  study  of  old  English  serf-  and  villein- 
law.  Roman  law,  however,  is  so  independent  of  institutions 
peculiarly  Roman,  that  while  slavery  has  long  ceased  to  be  of 
any  practical  interest  to  the  jurists  of  modern  Europe  —  except 
as  a  pretext  to  grab  large  territories  in  Africa  —  Roman  slave- 
law  continues  to  exercise  a  most  intense  interest,  and  recent  books, 
like  Professor  Leist's  books  on  "  Roman  Patronatus",  are  eagerly 
welcomed  on  all  hands  as  contributions  to  practical  law. 

.  .  .Roman  slave-law  has  a  value  entirely  independent  of  the 
historical  and  as  it  were  accidental  institution  of  Roman  slavery. 
American  slavery  is  a  thoroughly  historical  institution,  and  the 
works  of  Cobb,  Hurd,  Wilson,  and  others  on  American  slave-law 
are  totally  ignored  by  the  present  lawyers  of  Louisiana,  Alabama, 
or  Mississippi.     Not  so  Roman  treatises  on  slave-law. 

It  is  the  same  case  with  the  peculiarly  Roman  institution 
of  "  patria  potestas  ",  which,  although  long  obsolete  as  such,  is 
still  of  practical  value  to  all  countries  where  Roman  law  has  been 
adopted  .  .  . 

Roman  private  law  grew  up  in  a  strictly  legal  atmosphere,  and 
consequently  furnishes  us  principles  of  a  purely  jural  and  legal 
character  as  distinct  from  law-principles  tinctured  with  political, 
theological,  or  ethical  concepts ;  it  developed  as  Pomponius  once 
says  :   ''  rebus  ipsis  dictantibus." 

We  have  now  to  inquire  what  was  the  originating  cause,  the 
"  vera  causa  "  of  this  marvelous  law  ?  Why  was  it  that  the 
Romans  alone  were  able  to  furnish  their  age  and  all  subsequent 
ages  with  law-principles  that  were  as  completely  divested  of  non- 
legal  elements  as  are  the  propositions  in  Euclid  of  non-mathe- 
matical? Before  proceeding  to  a  sketch  of  my  view  of  the  vera 
causa,  it  will  be  necessary  to  premise  the  views  of  others- 


426  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

.  ,  .  According  to  Coulanges,  Roman  as  well  as  Greek  law  was 
derived  from  the  religious  beliefs  of  the  Romans  and  Greeks, 
from  the  worship  of  their  ancestors  and  their  homesteads.  This 
explanation  of  the  origin  of  Roman  law  fails  to  account  for  the 
very  first  question  involved  in  our  problem :  namely,  why  the 
Greeks  were  unable  to  create  the  very  elements  of  a  law-system 
which  the  Romans  succeeded  in  bringing  to  the  highest  pitch  of  per- 
fection. Professor  Coulanges'  explanation  covers  both  Greeks  and 
Romans ;  it  tries  to  account  for  the  law  of  the  former  as  well  as 
for  that  of  the  latter,  taking  it  for  granted  that  there  is  no  essen- 
tial difference  between  Greek  and  Roman  law,  as  there  was  no 
essential  difference  betwen  their  religious  beliefs.  But  this  is 
exactly  the  thing  that  we  are  forced  to  deny.  Roman  law  is  es- 
sentially, and  as  the  Latin  saying  is,  "  toto  cselo  "  different  from 
Greek  law ;  consequently  it  cannot  be  derived  from  religious  be- 
liefs the  majority  of  which  were  common  both  to  Greeks  and 
Romans.  In  fact,  as  I  have  endeavored  to  suggest,  Roman  law 
owes  its  excellence  partly  to  the  fact  of  its  being  entirely  independ- 
ent of  religious  ideas. 

Professor  Jhering,  of  Gottingen,  in  his  celebrated  work  entitled, 
"  Geist  des  romischen  Rechts  ", —  "  Spirit  of  Roman  Law  "  (or, 
as  some  of  his  opponents  have  put  it,  "  Spirit  of  Professor  Jhe- 
ring"), says  a  good  deal  about  the  causes  of  Roman  law ;  he  thinks 
that  the  cultivation  of  law  was  allotted  to  thp  Romans,  ''according 
to  the  economy  of  history."  ^  This  Very  probably  means  that  the 
Romans  had  a  historical  vocation  to  cultivate  law,  because  — 
they  were  given  the  power  to  do  so.  This  again  is  on  a  line  with 
the  assertion  that  the  poverty  in  London,  for  instance,  is  owing 
to  the  great  number  of  poor  people  in  London.  And  this  again 
means  nothing  at  all.  To  say  that  a  nation  perfcrmed  certain 
feats  of  intellect  or  character,  because  it  had  a  historical  vocation 
for  it,  is  tantamount  to  a  confession  of  total  ignorance  regarding 
the  causes  of  such  feats.  Jhering  proceeds  to  say  that  the  Roman 
people  had  one  pre-eminent  trait  of  character,  selfishness;  and  that 
their  law  is  —  the  religion  of  selfishness.^  And  this  peculiar  trait 
of  character  made  them  apt  to  carry  out  the  promptings  of  their 
historical  vocation.  "  The  Roman  world  taken  as  a  whole  may  be 
designated  as  the  triumph  of  the  idea  of  utilitarianism  and  prac- 
ticability ;  all  her  forces  both  of  mind  and  character  exist  on  be- 
half of  utilitarian  objects.     Selfishness  is  the  moving  power  of  the 

1  "Nach  der  Oekonomie  der  Geschiehte",  T,  316. 

2  "Die  Religion  der  Selbstsucht",  ib.,  p.  328. 


Chap.   XVI.]  THE   CONSTITUTIONAL   FACTOR  427 

whole ;  the  whole  of  Roman  virtues  and  institutions  is  the  objec- 
tivation  or  the  organism  of  national  selfishness."  Having  thus 
characterized  the  Roman  nation,  he  proceeds  to  gather  the  infini- 
tude of  Roman  law-institutions  under  a  few  heads,  which  he  calls 
''  principles  "  or  leading  ideas,  first  of  which  is  the  *'  principle  " 
of  the  "  subjective  will  ",  and  of  this  he  says  that  it  is  the  foun- 
tain-head of  Roman  law.  In  addition  to  this  he  teaches  that  there 
w^re  several  '  Triebe  "  or  propensities  at  work,  and  he  deduces 
many  Roman  law-concepts  from  such  national  propensities. 

I  am  sorry  to  say  that  while  I  readily  accept  many  of  Professor 
Jhering's  brilliant  suggestions,  especially  in  the  last  volume 
of  his  work,  I  fail  to  see  the  adequacy  of  his  vague  "  principles  " 
and  "  propensities."  I  most  profoundly  believe  that  such  terms 
are  nothing  else  than  the  "  qualitates  occultae  "  of  the  scholastics, 
that  they  do  not  account  for  concrete  institutions,  and  that  they 
can  at  the  best  only  characterize  an  institution,  but  not  deduce 
it  from  its  real  causes.  True,  the  Roman  nation  manifests  a 
certain  selfishness,  although  it  is  hard  to  see  why  we  should  blame 
a  nation  for  selfishness,  every  single  member  of  which  labored 
more  for  the  common  weal  than  for  his  own  profit.  But  one  or 
two  moral  traits  are  totally  unfit  to  account  for  concrete  institu- 
tions. The  Greeks  surely  can  be  said  to  have  been  a  people  with 
a  keen  sense  of  beauty.  But  who  will  explain  the  rise  of  their 
marvelous  sculpture  from  this  sense  alone?  Who  will  call  it  the 
fountain-head  of  their  sculpture?  In  other  words,  who  will  call 
a  symptom  a  cause  ?  .  .  .  The  Romans  were  not  one  whit  more 
selfish  than  any  other  nation,  and  the  principle  of  subjective  will 
was  not  stronger  in  them  than  in  any  other  prosperous  people. 

The  late  Sir  H.  Maine  (in  the  first  chapter  of  his  ''  Ancient 
Law  ")  was  of  opinion  that  Roman  law  owed  its  peculiar  develop- 
ment to  the  ''  theoretical  descent  of  Roman  jurisprudence  from 
a  code  ",  meaning  the  XII  Tables,  and  that  ''  the  theoretical 
ascription  of  English  law  to  immemorial  unwritten  tradition  " 
was  the  chief  reason  of  its  developing  differently  from  Roman 
law.  He  lays  particular  stress  on  the  fact  that  the  Romans 
possessed  a  code  at  a  time  when  usage  was  still  wholesome,  as 
he  says.  In  fact,  he  thinks  that  the  XII  Tables  were  the  chief 
cause  of  Roman  law  having  so  steadily  advanced  to  its  ultimate 
perfection.  I  regret  to  say  that  I  cannot  accept  this  as  an  ade- 
quate explanation.  The  XII  Tables  were  an  admirable  collec- 
tion of  the  current  law  of  the  fourth  and  fifth  decades  of  the  fifth 
century  B.C.     But  so  were  the  codes  of  the  Icelanders,  Irish,  Welsh, 


428  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

or  Germans.  They  all  had  codes,  and  at  a  very  early  date  of  their 
history.  But  not  one  of  those  nations  succeeded  in  developing 
the  original  code  to  a  perfect  system  of  law.  Why  should  a  code 
as  such  be  productive  of  this  result?  Can  a  code  not  become 
obsolete,  inconvenient,  and  inapplicable  ?  The  marvel  is  not  that 
the  Romans  once  had  a  code,  called  the  XII  Tables,  but  that  they 
persistently  clung  to  it  for  over  eight  centuries,  although  continu- 
ally improving  and  refining  upon  it.  This  tenacious  and  pious  at- 
tachment to  a  code  can  surely  not  be  explained  by  the  code  itself. 
.It  originates  not  from  the  code  but  from  the  people  who  uphold 
it.  The  Americans  continue  to  observe  their  written  constitu- 
tion, not  because  it  was  once  written,  but  because  they  are  deter- 
mined to  revere  it  as  their  fundamental  law.  It  is  their  merit, 
not  that  of  Jefferson  or  Washington. 

Professor  Theodor  Mommsen,  of  Berlin,  in  his  "  Roman  His- 
tory ",  devotes  several  chapters  to  the  consideration  of  Roman  law, 
and  occasionally  he  gives  the  following  solution  of  our  problem : 
"It  is  customary  to  laud  the  Romans  as  a  nation  privileged  to 
the  cultivation  of  law,  and  to  admire  their  excellent  law  as  a 
mystical  gift  from  heaven ;  this  is  probably  done  to  save  us  feel- 
ing ashamed  of  the  misery  of  our  own  administration  of  law. 
One  glance  at  the  extremely  inconsistent  and  undeveloped  criminal 
law  of  the  Romans  should  convince  us  of  the  untenableness  of  their 
vague  notions  regarding  Roman  law,  even  those  to  whom  it  would 
appear  too  simple  to  say,  that  a  sound  nation  has  a  sound  law, 
and  an  ill  nation  an  unsound."  In  other  words,  the  simple  solution 
of  the  mystery  of  the  law  of  the  Romans,  according  to  Professor 
Mommsen,  is  the  fact  that  they  were  a  healthy  nation,  and,  ac- 
cordingly, had  a  healthy  law.  In  the  passage  just  quoted  from 
Mommsen,  he  animadverts  on  the  highly  imperfect  state  of 
Roman  criminal  law ;  how  shall  we  now  understand  his  "  healthi- 
ness of  the  Romans  "  ?  They  had  a  good  civil  law,  because  they 
were  a  healthy  nation.  Why  then  did  they  not  also  have  a  good 
criminal  law?  His  expression  "sound  law"  refers  both  to  civil 
and  criminal  law.  If  a  healthy  nation  have  a  healthy  law,  why 
not  a  healthy  criminal  law  as  well  as  a  healthy  civil  law?  But 
apart  from  this  insoluble  contradiction,  what  shall  such  an  ex- 
tremely vague  and  cloudy  statement  avail  us?  Were  the  Spar- 
tans not  a  healthy  nation?  And  the  Macedonians?  Health  is 
a  very  valuable  thing  both  in  individuals  and  nations ;  but  health 
alone  cannot  account  for  concrete  achievements  in  science  or  philos- 
ophy.    The  health  of  a  nation  depends  chiefly  on  a  sound  condition 


Chap.  XVI.]  THE   CONSTITUTIONAL  FACTOR  429 

of  its  finances  and  its  army,  together  with  the  purity  of  family  life 
and  public  morals.  I  fail  to  see  how  these  factors  can  account  for 
the  fact  that  the  Romans  alone  produced  a  perfect  system  of  private 
law.  Many  another  nation  had  sound  financial,  military,  and 
moral  conditions;  but  the  Romans  alone  created  an  immortal 
system  of  private  law. 

I  shall  now  try  to  draw  the  outlines  of  my  view  of  the  real  causes 
of  Roman  private  law.  The  search  for  such  causes  is  frequently 
discredited  at  the  hands  of  some  jurists,  as  savoring  too  much 
of  metaphj'sical  or  purely  philosophical  ideas.  And  as  a  rule 
the  authors  of  histories  of  Roman  law  carefully  avoid  investigat- 
ing the  causes  of  the  grand  fabric  of  the  law  they  treat  of.  The 
Romans  themselves  had  no  idea  of  the  real  motors  of  their  law, 
and  this  is  perfectly  in  keeping  with  the  experience  of  our  ow^n 
times.  Very  few  Englishmen  could  give  a  satisfactory  account  of 
the  rise  of  English  equity  law,  barring  mere  quotations  from  the 
current  histories  of  English  law.  Or  to  come  to  present  times, 
exceedingly  few  Englishmen  or  Americans  could  satisfactorily 
account  for  the  rise  of  two  recent  social  movements  that  have 
already  assumed  vast  dimensions.  I  mean  Prohibitionism  and 
the  Salvation  Army,  The  modern  historians  of  Roman  law,  not 
being  able  to  find  explicit  passages  of  Roman  authors  concerning 
the  real  causes  of  their  law,  simply  ignore  the  questions,  and  re- 
main, as  Rudorff  says,  "  on  the  ground  of  solid  comprehension 
and  continuous  work."  ^ 

Rudorff  and  many  more  German  historians  of  Roman  law 
notwithstanding,  I  venture  to  say  that  unless  we  can  fully  compre- 
hend the  practical  causes  that  were  productive  of  Roman  law,  we 
shall  never  be  able  to  understand  the  institutions  of  Roman  law  as 
we  understand  some  of  our  own  institutions.  They  will  never  come 
home  to  us ;  they  will  only  be  an  undigested  mass  of  learned  texts, 
which  we  have  to  commit  to  memory  through  laborious  study  of 
the  ancient  and  modern  authorities.  A  clear  understanding  of  the 
causes  of  Roman  law,  on  the  other  hand,  facilitates  our  study  of 
that  law  most  effectively.  In  order  to  convey  a  very  distinct  idea 
of  my  view  I  have  tried  to  reduce  it  to  a  few  words,  in  fact,  to  one 
single  word,  so  that  whatever  you  may  happen  to  think  of  the  value 
of  my  view,  you  will  not  be  doubtful  as  to  what  my  view  is. 

The  main  catcse  of  the  rise  of  Roman  private  law  and  its  high 
perfection  I  take  to  be  the  Roman  institution  of  Infamia, 

1  **Auf  dem  Boden  soliden  Erkennens  und  Fortarbeitens "  ("Rechts- 
gesch. ":     Preface). 


430  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

The  Roman  institution  of  "  infamia  "  was  the  fountain-head, 
or  rather  the  chief  motor  and  factor  that  brought  about  the  ma- 
jority of  those  legal  institutions  the  sum  total  of  which  go  to 
form  the  system  of  Roman  law.  It  was  this  institution  that  led 
to  the  rise  of  Roman  jurists  ;  not  of  lawyers,  but  of  "  jurispruden- 
tes  " ;  and  it  was  likewise  this  institution  that  served  these  jurists 
with  a  mental  check,  as  it  were,  in  their  elaboration  of  legal  con- 
cepts. To  bear  out  this  assertion  I  shall  first  characterize  in  a 
few  words  the  institution  of  Roman  infamia. 

Infamia  in  Latin  means  infamy,  public  disgrace.  Savigny, 
whose  chapter  on  infamia  is  still  considered  the  best  extant 
treatise  on  this  institution,  says  :  "  Infamia  as  the  consequence  of 
a  criminal  sentence  became  a  generalrule  only  by  degrees."  And 
this  is  the  salient  point  of  the  whole  problem,  the  point  to  which 
I  wish  you  to  pay  special  attention.  Certain  trespasses  entailed 
the  punishment  of  public  disgrace.  The  Romans,  just  as  we, 
punished  certain  trespasses  or  offences  with  fines  and  loss  of  honor. 
A  person  convicted  of  theft  is  considered  disgraced  in  our  times. 
He  is  unable  to  hold  a  public  office,  and  society  will  not  receive 
him.  That,  therefore,  the  Romans  were  sensible  of  the  disgrace 
inherent  in  certain  offences  appears  very  natural  indeed. 

But  what  shall  we  say  on  reading  that  the  Romans  did  not  think 
that  a  person  was  disgraced  by  embezzling  public  money?  or 
committing  a  crime  against  public  morals  ?  For  such  is  the  case. 
We  read  in  Zumpt's  "  Criminal  Law  of  the  Roman  Republic  "  : 
"  There  is  no  trace  that  persons  fined  by  the  tribunes  had  to 
suffer  from  any  public  disgrace  ;  on  the  contrary,  there  are  examples 
of  such  persons  having  kept  their  offices,"  and  he  quotes  several 
examples  of  Roman  officials  who  were  convicted  of  embezzling 
public  money  and  yet  did  not  sustain  any  loss  of  honor,  or 
"  capitis  diminutio." 

This  strange  leniency  stands  in  glaring  contrast  with  the  utter 
rigor  of  Roman  law  concerning  the  trespasses  or  offences  of  a 
much  lesser  kind.  In  fact  it  is  no  paradox  at  all  to  say  that  while 
the  Romans  of  the  republic  readily  connived  at  some  of  the  most 
dangerous  offences  committed  against  the  commonwealth  of 
Rome,  they  mercilessly  resented  the  slightest  ruptures  of  private 
relations.  In  other  words :  their  private  law  was  infinitely  more 
draconic  than  their  criminal  law.  We  just  saw  that  an  embezzler 
of  public  money  was  fined  but  not  disgraced.  On  the  other  hand, 
we  learn  that  a  private  agent  of  a  Roman,  a  "  mandatarius  ", 
if  there  was  a  civil  judgment  against  him  enjoining  him  to  refund 


Chap.   XVI.]  THE   CONSTITUTIONAL  FACTOR  431 

the  money  he  had  been  intrusted  with,  was  "  ipso  facto  "  dis- 
graced, that  is,  henceforth  unable  to  vote  or  to  be  elected. 

jMind  the  enormity  of  the  case :  there  is  a  civil  judgment  in  a 
civil  case ;  a  judgment  commanding  the  defendant  to  refund  the 
money  he  had  received  from  his  mandator.  This  judgment  put 
an  indelible  stain  on  the  social  life  of  the  defendant ;  in  fact  it 
made  him  a  social  outcast.  And  now  compare  the  horrible  con- 
sequence of  this  civil  judgment  with  the  indifferent  consequence 
of  the  criminal  conviction  of  an  embezzler  of  public  money  !  What 
inconsistency !  The  private  agent  of  a  private  person  is  defeated 
in  a  civil  lawsuit ;  and  instead  of  being  held  to  pay  a  fine  he  is 
deprived  of  his  most  precious  civil  rights,  of  rights  that  were  in- 
finitely more  precious  to  a  Roman  than  to  a  modern  *'  citizen." 
A  Roman  who  was  deprived  of  his  right  of  suffrage  and  conse- 
quently of  his  eligibility  to  the  various  oflSces  of  the  state,  was 
deprived  of  his  very  life.  Outside  state-life  there  was  no  life  in 
republican  Rome.  Death  was  decidedly  preferable  to  the  punish- 
ment of  infamia,  and  the  latter  has  rightly  been  called  "  civil 
death."  And  this  civil  death  was  the  lot  of  him  who  had  the 
misfortune  of  getting  defeated  in  civil  law  suits.  For  the  case 
of  an  agent  was  not  only  the  case  in  which  infamia  could  be  in- 
flicted. In  fact,  if  we  endeavor  to  represent  to  ourselves  the  actual 
practice  of  Roman  private  law,  we  shall  see  that  the  spectre  of 
infamia  threatened  the  citizens  at  nearly  every  step  of  their  daily 
actions. 

Infamja  was  directly  or  indirectly  the  consequence  of  innumer- 
able actions.  In  current  works  on  Roman  law  you  will  find  enu- 
merated a  small  number  of  actions  that  could  bring  infamia  upon 
the  defeated  defendant.  This,  how^ever,  is  an  altogether  mis- 
leading statement.  Infamia  was,  for  instance,  the  consequence 
of  "  commodatum  ",  that  is,  when  a  lender  sued  the  borrower, 
provided  the  borrower  had  used  the  loaned  thing  in  a  way  contrary 
to  stipulation.  In  such  a  case  the  lender  could  use  the  "  actio 
furti  ",  which  inflicted  infamia  on  the  defendant.  One  of  the  most 
generally  applicable  actions  was  the  "  actio  doli  ",  since  it  lay  in 
every  case  when  an  evil  design  on  the  part  of  the  defendant  could 
be  proved,  provided  there  was  no  other  specific  **  actio  "  appli- 
cable. But  any  civil  action  could  inflict  infamia,  inasmuch  as  the 
execution  of  any  civil  judgment,  or  as  we  call  it,  any  writ  of  "  fieri 
facias  ",  inflicted  infamia. 


432  FACTORS   OF    LEGAL   EVOLUTION  [Pakt   IT. 

.  .  .  Infamia  was  the  sword  of  Damocles,  that  constantly  hung 
over  the  life  of  every  single  Roman  during  the  whole  period  of  the 
republic.  The  causes  of  this  strange  institution  are  patent  to  any 
one  who  carefully  studies  the  marvelous  frame  of  the  Roman 
State.  It  is  impossible  to  dwell  on  this  point  at  present.  I 
will  state  this  much,  that  the  institution  of  infamia  was  the  great 
constitutional  check  of  the  Roman  commonwealth.  Infamia 
thus  threatened  every  single  Roman  at  every  step  and  at  every 
turn  of  his  every-day  life.  ,  He  could  not  transact  the  least  bit 
of  business,  the  smallest  affair  that  could  eventually  lead  to  liti- 
gation in  court,  without  jeopardizing  his  very  civil  existence. 

Now  represent  to  yourself  the  practical  working  of  such  an  in- 
stitution as  infamia.  On  the  one  hand,  every  Roman  citizen  was 
profoundly  convinced  of  the  impossibility  of  shaking  off  the 
tyranny  of  that  institution ;  on  the  other  hand,  every  Roman 
citizen  could  not  help  seeing  that  some  means  have  to  be  dis- 
covered which  will  obviate  the  sorest  consequences  of  infamia  with- 
out doing  away  with  the  otherwise  wholesome  institution  itself. 
Suppose  a  Roman  had  a  friend  whom  he  had  commissioned  to  do 
some  business  for  him ;  in  short,  suppose  the  ''  mandatarius  "  of  a 
Roman  happened  to  be  his  friend.  For  some  reason  or  other  this 
mandatarius  could  not  refund  the  money  he  had  been  intrusted 
with,  or  did  not  wind  up  his  "  mandatum  "  in  a  proper  way.  The 
Roman  now  is  under  the  obligation  to  sue  his  friend,  with  the 
"  actio  mandati  directa  ",  that  is,  with  an  action  that  will  even- 
tually bring  infamia  upon  his  friend,  or  on  himself.  For,  if  the 
judges  held  that  his  friend  was  not  bound  to  refund  any  money, 
his  friend  could  sue  him  with  the  '^  actio  injuriarum ",  which 
brought  likewise  infamia  upon  the  defeated  defendant.  As  in 
this  case  so  it  was  in  innumerable  cases  of  every-day  life. 

Now,  no  gentleman  will  delight  in  ruining  his  friend  for  a  sum 
of  money.  In  this  predicament  of  his  the  Roman  naturally 
turned  to  some  clever  man  of  his  acquaintance  for  advice.  This 
clever  man  could  solve  the  problem  in  one  way  only;  not  being 
allowed  to  uproot  the  foundations  of  the  institution  of  infamia, 
that  is,  of  substantive  law,  he  essayed  to  compass  his  end  by  fitly 
adapting  the  case  of  his  client  to  adjective  law,  to  the  law  of 
procedure.  Thus  it  came  about  that  that  portion  of  the  law  of 
Rome  which  we  are  used  to  call  the  adjective  or  subordinate 
portion  of  law,  was  in  reality  the  substantive  portion  of  it.  In 
Roman  law  the  law  of  procedure  was  the  prior,  the  substantive  law. 
This  is  exactly  the  reverse  of  English  law,  in  which  the  law  of 


Ch.\p.   XVI .J  THE   CONSTITUTIONAL   FACTOR  433 

procedure  is  called  adjective  law.  The  actio  is  the  mcderatcr 
of  rights,  and  not  vice  versa. 

The  common  law  of  Rome  was  a  law  in  which  the  action  was 
not  the  mere  appendix  of  the  right,  as  in  modern  times,  but  its 
root.  Now-a-days  we  distinguish  between  contentious  juris- 
diction and  voluntary  jurisdiction,  as  it  is  called  in  English  ec- 
clesiastical law.  Conveyancing,  e.g.,  is  a  non-contentious  affair, 
and  consequently  it  does  not  assume  the  garb  of  an  action.  But 
in  Rome  the  most  peaceful  act  of  non-contentious  transactions 
assumed  the  garb  of  a  full-fledged  action  of  law.  For  in  Rome 
the  actio,  that  is,  contentious  law,  was  the  fountain-head  of  non- 
contentious  law.  .  .  . 

.  .  .  One  moment's  reflection  will  satisfy  any  student  of  Roman 
institutions  that  in  a  commonwealth  where  ordinary  business- 
transactions  were  saturated  with  germs  of  the  most  deleterious 
nature,  some  citizens  will  naturally  fall  to  thinking  about  remedies 
that  might  mitigate  the  virulence  of  the  poison.  And  this  is  the 
reason  why  the  Romans,  a  military  people,  a  people  that  held 
commerce  in  contempt,  and  who  did  not  cultivate  philosophy  or 
science  at  all,  a  people  of  haughty  warriors,  who  never  succeeded  in 
systematizing  their  constitutional  or  criminal  law— I  say,  this  is  the 
reason  ^yhy  the  Romans  felt  induced  to  pay  such  extraordinary  at- 
tention to' the  regulation  and  systematization  of  private  law.  Their 
private  law  had  the  character  not  of  our  private  law,  but  of  our  modem 
criminal  law;  and  it  is  only  in  the  domain  of  criminal  law  that  we 
can  ever  hope  to  equal  the  ancient  Romans,  since  our  criminal  law 
arises  from  an  institution  similar,  if  not  identical,  with  the  insti- 
tution of  infamia,  namely,  the  institution  of  modern  social  honor. 

We  can  entertain  no  hopes  to  equal  the  Romans  in  the  elabora- 
tion of  systems  of  private  law ;  but  we  are  allowed  to  cherish  the 
hope  that  we  shall  uphold  the  fabric  of  our  civilization  without 
placing  the  sword  of  Damocles  over  the  head  of  every  citizen  in 
every  hour  of  his  daily  life.  For  all  higher  institutions  high 
prices  must  be  paid.  The  unrivaled  abundance  of  Greek  litera- 
ture, philosophy,  and  science  was  purchased  at  the  expense  of  the 
total  subjugation  of  the  female  and  two  thirds  of  the  male  popula- 
tion of  Greece.  Roman  law  was  purchased  at  the  expense  of  an 
institution  than  which  the  Spanish  Inquisition  was  not  much  more 
cruel.  Let  us  charitably  hope  that  our  civilization,  if  wanting 
in  a  perfect  system  of  private  law,  is  also  wanting  in  social  spectres 
like  the  Roman  institution  of  infamia. 


434  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

II.    Roman  Law  and  Modern  Evolutionist  Theories 


Investigations  into  the  causes  of  Roman  law  are  of  very  great 
moment  for  two  reasons ;  first,  on  account  of  the  intense  interest 
attaching  to  the  institutions  of  ancient  Rome  in  general,  and  to  its 
law  in  particular;  secondly,  on  account  of  such  investigations 
being  fit  to  serve  as  test-cases  for  the  doctrines  of  modern  evolu- 
tionism. 

The  great  and  signal  success  of  Darwinism  in  the  domain  of 
natural  science  has  filled  its  adherents  with  just  enthusiasm.  The 
most  radical  opponent  of  the  theories  of  Darwin,  Haeckel,  Huxley, 
Wallace,  and  other  eminent  Darwinists  cannot  but  acknowledge 
that  many  facts  of  morphology,  botany,  zoology,  and  anthropology 
have  been  reduced  to  greater  scientific  order ;  and  numerous  facts 
hitherto  unknown  have  been  discovered  through  the  improved 
methods  of  Darwinism.  To  deny  this  would  be  to  deny  the  most 
evident  fact  in  modern  science. 

Enthusiasm,  however,  is  likely  to  carry  away  its  devotees ;  and, 
accordingly,  the  fervent  adherents  of  modern  evolutionism  were 
not  satisfied  with  the  laurels  won  in  the  sciences  just  named, 
but  essayed  to  try  their  victorious  concepts  on  problems  that  have 
previously  been  considered  outside  the  pale  of  the  naturalist. 
The  puzzles  of  sociology,  the  enigmas  of  the  rise  and  development 
of  social  institutions,  they  declared  to  be  amenable  to  satisfactory 
solutions  by  means  of  ideas  and  concepts  that  proved  so  successful 
with  regard  to  the  physical  frame  of  animals  and  plants.  Re- 
ligion, marriage-systems,  kinship-systems,  ceremonies,  and  laws 
were  and  are  said  to  be  problems  that  unbosom  their  mysteries 
to  "  natural  selection  ",  "  survival  of  the  fittest  ",  "  atavism  ", 
"  theory  of  survivals  ",  and  the  rest  of  Darwinian  concepts  with 
astounding  willingnesSv  We  are  taught  that  in  social  institutions, 
as  in  animals  and  animal  life,  there  is  an  uninterrupted  process 
of  ev9lution  going  on,  one  "  stage  "  of  civilization  succeeding  to 
another  "  stage  ",  the  "  higher  "  to  the  "  lower  ",  the  "  hetero- 
geneous "  to  the  "  homogeneous  "  ;  that  humanity  was  first  what 
the  savages  of  Africa  and  South  America  are  at  present ;  that  by 
dint  of  more  advanced  ideas  and  greater  "  enlightenment  "  social 
institutions  have  been  slowly  improving;  and  that  our  present 
civilization,  although  containing  many  "  survivals  "  of  ruder  and 
less  "  enlightened  "  times,  is,  by  the  very  working  of  the  principles 
of  "  natural  selection  "  and  "  survival  of  the  fittest ",  radically 


Chap.   XVI.]  THE   CONSTITUTIONAL  FACTOR  435 

superior  to  the  civilizations  of  either  Greece  and  Rome  or  the 
Middle  Ages. 

While  fully  acknowledging  the  great  services  rendered  to  natural 
science  by  Darwinism,  we  most  positively  deny  that  any  one  of 
the  great  problems  of  the  history  of  institutions  has  been  brought 
to  a  satisfactory  solution  by  means  of  Darwinian  concepts.  How- 
ever, much  as  we  should  like  to  dwell  on  this  most  interesting 
point  at  full  length,  we  have  to  restrict  ourselves  to  a  more  con- 
crete question. 

We  maintain  that  the  rise  and  development  of  Roman  law, 
or,  to  use  modern  phraseology,  that  the  "  evolution  "  of  Roman 
law,  cannot  be  construed  or  understood  by  bringing  the  con- 
cepts of  Darwinism  to  bear  upon  it.  On  the  contrary:  the 
"  evolution  "  of  Roman  law  is,  as  the  evolution  of  all  other  social 
institutions,  manifest  evidence  against  the  applicableness  of 
modern  evolutionist  concepts  to  the  development  of  social  institu- 
tions. 

According  to  evolutionist  views  the  law  of  a  nation  is  derived 
either  from  the  law  of  another  nation,  or  from  rudimentary  and 
incipient  legal  institutions  of  its  own.  In  both  cases  one  law  is 
derived  from  another  law.  This,  however,  does  not  hold  good  in 
the  case  of  the  Romans;  the  Romans  not  having  derived  their 
law  from  other  nations,  nor  from  an  alleged  rudimentary  law  of 
their  own  ancestors.  That  the  Romans  did  not  borrow  their  law 
from  the  Greeks  or  any  other  nation  has  been  proved  nearly  two 
hundred  years  ago  by  Vico ;  that  they  did  not  "  evolve  "  their  law 
out  of  rudimentary  "  variations  ",  aided  by  '*  natural  selection  in 
the  struggle  for  life  ",  has  been  proved,  we  trust,  [here].  Roman 
law,  we  said,  was  an  outcome,  not  of  causes  pertaining  to  law,  but 
of  causes  pertaining  to  politics.  It  arose  simultaneously  with  the 
peculiar  constitution  of  the  Roman  Stale.  Given  the  constitu- 
tion of  Rome,  the  science  of  Roman  law  follows  from  it  at  once  : 
it  is  not  a  matter  of  slow  development,  of  long  growth,  of  adapta- 
tion, or  struggle,  death,  and  survival ;  it  is  a  matter  of  logical  suc- 
cession. Just  as  the  theorem  of  Pythagoras  follows  from  the 
nature  of  the  rectangular  triangle  at  once  and  irrespective  of  time ; 
even  so  the  law  of  Rome  from  the  constitution  of  Rome.  For,  in 
fact,  the  law  of  Rome  was  part  of  Rome's  constitution.  There 
is  no  prior,  and  no  posterior;  no  antecedent,  and  no  successor. 
The  essential  features  of  Roman  law  were  extant  at  the  time  when 
the  essential  features  of  the  Roman  republic  had  come  into  exist- 
ence.    The  rest  was  mere  expansion  and  elaboration  of  given 


436  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

principles.  But  of  slow  growth,  of  evolution  through  stages, 
there  is  no  trace.  The  praetorian  law,  it  is  true,  was  immeasur- 
ably less  developed  in  the  third  than  in  the  first  century  B.C. 
This,  however,  was  owing  not  to  a  lower  "  stage  '*  in  the  "  evolu- 
tion "  of  Roman  law,  but  to  the  simple  fact  that  the  Romans 
of  the  third  century  did  not  need  an  elaborate  system  of  prae- 
torian law,  being,  as  they  were,  a  comparatively  small  common- 
wealth. 

The  evolutionist  is  in  constant  demand  of  enormous  periods  of 
time.  He  believes  that  the  small  and  incipient  changes,  that  he 
is  so  sorely  in  need  of,  are  sure  to  happen  in  one  of  the  countless 
minutes  of  vast  infinitudes  of  time.  The  incipient  "  variations  '' 
—  this  the  killjoy  of  Darwinists  —  he  cannot  dispense  with ;  at 
the  same  time,  however,  he  is  unable  to  assign  a  definite  time  to 
their  rise ;  and  thus  he  drowns  his  doubts  in  the  extremely  plausi- 
ble assumption  that  the  required  incipient  "  variation  "  is  more 
than  likely  to  happen,  provided  we  give  it  liberal  chances  of  time. 
Now  there  is  nothing  cheaper  than  abstract  time;  and  each  of 
us  is  willing  to  grant  any  quantity  of  an  object  than  which  nothing 
is  more  inexhaustible.  So  it  comes  to  pass  that  the  vast  periods 
of  time  demanded  from  the  evolutionist  have  been  willingly  granted 
on  all  hands. 

This  may  do,  and  no  doubt  does  in  natural  science.  But  it  will 
never  do  in  the  science  of  social  institutions.  The  objects  of  the 
latter  are  distinctly  and  well-nigh  essentially  different  from  those 
of  the  former,  in  that  they  invariably  refer  to  organized  aggregates 
of  individuals ;  whereas  biology  proper  treats,  as  a  rule,  of  indi- 
viduals only.  One  fox  does  and  acts  exactly  what  a  thousand  foxes 
are  doing  and  acting.  The  actions  performed  by  one  man,  on  the 
other  hand,  are  totally  different  from  the  actions  of  organized 
aggregates  of  a  thousand  men.  Sociology  treats  of  aggregates  of 
individuals,  institutions  being  the  outcome  of  the  activity  of  aggre- 
gates. In  large  aggregates,  however,  movements  are  much  less 
given  to  unaccountable  changes,  to  chance  "  variations."  No 
stretch  of  time  will  give  us  a  right  to  assume  the  rise  of  such  in- 
cipient "  variations  ",  as  Darwinists  constantly  presuppose,  de- 
claring at  the  same  time,  that  the  laws  of  "  variations  "  are  covered 
with  "  profound  mystery."  Instead  of  begging  incipient  "  vari- 
ations", and  leaving  the  explanation  of  their  rise  entirely  unat- 
tempted,  the  student  of  institutions  has  to  insist  on  nothing  more 
uncompromisingly,  than  on  the  explanation  of  what  Darwinists  call 
"  variations." 


ClL\P.   XVI.]  THE   CONSTITUTIONAL   FACTOR  437 

In  other  words :  Darwinists  constantly  beg  incipient  ''  varia- 
tions", waiving  at  the  same  time  all  responsibility  of  accounting 
for  such  "  variations."  The  student  of  social  institutions  never 
begs  incipient  "  variations  " ;  he  asks  for  such  variations  only 
as  he  can  suflficiently  account  for. 

Hence,  the  methods  of  Darwinism  desert  the  investigator  of 
social  institutions  at  the  very  point  where  his  investigations  com- 
mence. In  other  words,  they  do  not  assist  him  at  all,  proving, 
as  they  do,  inapplicable  to  sociological  problems. 

Roman  law  offers,  as  w^e  saw,  the  "  variations  "  of  a  civil  law 
saturated  with  elements  of  criminal  law.  The  causes  of  this 
variation  are  perfectly  clear  to  the  careful  student  of  Roman 
institutions.  It  was  the  necessary  check  of  a  constitution  that 
was  built  and  erected  on  the  strict  morality  of  a  few  citizens. 
The  question  again  as  to  the  causes  of  this  restriction  to  a  few 
citizens  resolves  itself,  .  .  .  into  the  problem  of  the  causes  of 
Roman  slavery,  which  in  its  turn  reposes  on  the  fact  that  the 
Grseco-Roman  age  knew  of  no  other  civilization  than  a  city-state 
civilization.  This  fact  again  arose  from  the  geographical  position 
of  antique  classical  countries,  all  of  them  being  situated  on  the 
shores  of  the  Mediterranean  Sea. 

Thus  we  can  follow  up  the  concatenation  of  causes  under  the 
constant  and  benignant  light  of  clear  ideas,  until  we  reach  causes 
the  explanation  of  which  devolves  upon  another  description  of 
thinkers.  But  nowhere  did  we  say  that  "  variations  "  are  to  be 
begged,  are  to  be  supposed  to  crop  up  as  mere  chance  rovers  in 
the  boundless  expanse  of  infinite  time. 

Nor  did  we  see  that  the  "variation"  of  law,  called  Roman  law, 
was  kept  up,  augmented,  fortified,  and  rendered  more  useful 
in  the  "  struggle  for  life  "  by  the  forces  of  "  natural  selection", 
or  ''  sexual  selection",  or  ''  survival  of  the  fittest."  The  "  varia- 
tion "  of  Roman  law  was  in  need  of  np  such  forces ;  it  was  born 
full-fledged,  irresistible  from  the  very  beginning.  It  was  not  the 
result  of  an  alleged  struggle  of  the  praetorian  system  against  the 
old  system  of  **  jus  civile  " ;  on  the  contrary,  these  two  systems 
were  mutually  interdependent  and  affiliated  throughout  all  periods 
of  Roman  history. 

Nor  can  we  perceive  any  "  survivals  "  in  Roman  law.  Our  view 
of  institutions  being  that  all  'present  institutions  are  kept  in  ex- 
istence by  present  causes,  we  cannot  adopt  the  evolutionist 
views  of  "  survivals."  Odd  habits  and  ceremonies  of  our  age, 
for  instance,  that  are  commonly  explained  on  the  assumption  of 


438  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

their  being  "  survivals  "  of  former  ages,  can  all  be  accounted  for 
by  the  working  of  present,  if  latent,  causes.  This  is  likewise  the 
case  with  similar  habits  and  apparent  oddities  in  Roman  law.  In 
Professor  Jhering's  ''  Spirit  of  Roman  Law "  a  considerable 
number  of  such  "survivals"  are  enumerated;  the  theory  of 
''  survivals  ",  however,  is  not  drawn  upon,  and  the  great  civilian 
rightly  remarks  :  "  On  pourrait  certes  soutenir  que  la  force  d'iner- 
tie,  la  puissance  de  I'habitude  seules  en  ont  fait  une  forme :  mais 
il  ne  faut  pas  oublier  que  la  puissance  de  I'habitude  a  elle  seule 
suppose  deja  une  disposition  subjective  favorable  a  la  forme."  ^ 

Evolutionist  theories  finally  draw  most  heavily  on  death.  Death 
is  the  great  friend  of  theories  that  have  to  do  away  with  innumer- 
able inconvenient  individuals,  in  order  to  make  room  for  such  as 
prove  fitted  for  the  "  sweet  habit  of  existence."  But  what  is  the 
meaning  of  death  with  regard  to  social  institutions?  What  can 
death  mean  for  aggregates,  the  members  of  which  are  constantly 
regenerated  from  the  inexhaustible  fountain  of  life?  Aggregates 
of  people  do  not  die  like  individuals.  They  have  a  life  of  consider- 
ably more  tenacious  cast.  They  sometimes  last  for  thousands  of 
years,  as  in  the  case  of  the  orthodox  Jews,  the  Chinese,  and  many 
other  nations.  Institutions  emanating  from  and  grafted  upon 
such  aggregates  are  not  like  the  colors  or  limbs  of  animals.  They 
are  based  upon  common  ideas,  and  many  ideas  contain  the  germ 
of  eternity.  Men  in  their  quality  as  members  of  aggregates  do 
not  struggle  for  physical  and  ephemeral  life  alone.  They  struggle 
for  another  life  also;  nay  their  noblest  and  highest  efforts  are 
directed  towards  a  life  beyond  the  limits  of  mere  countable  days 
and  nights.  The  base  of  their  aspirations  thus  being  shifted  from 
the  narrow  plane  of  divisible  time  to  the  boundless  ranges  of  eter- 
nity :  what  can  a  doctrine  avail  us  that  creeps  along  the  lowly 
fences  of  months  and  years,  and  registers  the  deaths  of  single 
individuals  ?  Nations  do  not  live  in  the  jail  of  time ;  they  live  or 
try  to  live  in  the  open  grounds  of  eternity.  Instead  of  wishing 
for  the  death  of  the  unfit,  they  frequently  so  arrange  matters  as 
to  care  for  nobody  as  lovingly  as  for  the  very  people  who  are  unfit 
for  the  struggle  of  life.  And,  vice  versa,  nations  frequently  pay 
the  highest  modes  of  worship  to  the  very  individuals  that  died 
art  early  death  in  the  service  of  ideas  maintaining  the  common- 
wealth of  that  nation.  In  what  sense  of  the  word  can  we  say  that 
Caesar  died  ?    Was  the  effect  of  his  actions,  words,  and  writings 

^  R.  von  Jhering,  "L'Esprit  du  Droit  Romain"  (French  transl.,  Paris, 
1880),  Vol.  Ill,  pp.  195,  196. 


Chap.  XVI.]  THE  CONSTITUTIONAL  FACTOR  439 

lost  like  that  of  a  dead  fox?  Could  the  bearing  of  every  minute 
of  his  life  on  the  Roman  commonwealth  be  effaced  by  that  accident 
on  the  Ides  of  March,  44  B.C.,  that  mortals  call  the  death  of  Caesar  ? 
Nay,  can  the  effect  of  the  life  of  the  least  and  most  insignificant 
Roman  be  said  to  have  vanished  at  all?  Was  not  Rome  the 
product  of  the  Romans,  and  does  not  Rome  still  govern  the  world, 
or  two  thirds  of  it  ? 

Whatever  death  may  mean  in  animals  —  and  a  late  theory 
pronounces  death  on  death  with  regard  to  earlier  periods,  con- 
tending that  death  has  been  "  evolved",  like  all  other  biological 
facts,  in  course  of  time  —  it  means  nothing  or  very  little  in  the 
history  of  aggregates  of  people.  Hence  the  great  fuss  made  over 
death  by  evolutionists  is  but  an  uncouth  racket  for  the  student 
of  institutions.  He  does  not  draw  on  death;  he  does  not  think 
that  the  span  of  life  enjoyed  by  an  individual  is  typical  for  the 
life  lived  by  aggregates.  Aggregates  rise  and  decay  according 
to  rules  totally  different  from  the  rules  of  life  in  force  among 
animals  and  plants.  They  live  in  a  temporal  space  beyond  mere 
phenomenal  time;  and  if  the  patient  and  careful  student  of  the 
rise,  development,  and  decay  of  Roman  law,  or  any  other  social 
institution,  cannot  but  feel  a  profound  antipathy  against  the  teach- 
ings of  modern  evolutionists,  he  does  so  mainly  because  he  is  fully 
convinced  that  the  life  of  nations  is  based  not  on  the  passing  waves 
of  time,  but  on  the  unchanging  expanse  of  eternity. 


H.— SOCIAL   FACTORS  — PHYSICAL   FORCE 

Chapti^i  XVII 
Section  1— THE  STRUGGLE  FOR  LAW^ 

The  end  of  the  law  is  peace.  The  means  to  that  end  is  war. 
So  long  as  the  law  is  compelled  to  hold  itself  in  readiness  to  resist 
the  attacks  of  wrong  —  and  this  it  will  be  compelled  to  do  until 
the  end  of  time  —  it  cannot  dispense  with  war.  The  life  of  the 
law  is  a  struggle,  a  struggle  of  nations,  of  State  power,  of  classes, 
of  individuals. 

All  the  law  in  the  world  has  been  obtained  by  strife.  Every 
principle  of  law  which  obtains  had  first  to  be  wrung  by  force  from 
those  who  denied  it ;  and  every  legal  right  —  the  legal  eights  of  a 
whole  nation  as  well  as  those  of  individuals  —  supposes  a  continual 
readiness  to  assert  it  and  defend  it.  The  law  is  not  mere  theory, 
but  living  force.  And,  hence  it  is,  that  Justice  which,  in  one  hand, 
holds  the  scales,  in  which  she  weighs  the  right,  carries  in  the  other 
the  sword  with  which  she  executes  it.  The  sword  without  the 
scales  is  brute  force ;  the  scales  without  the  sword  is  the  impotence 
of  law.  The  scales  and  the  sword  belong  together ;  and  the  state 
of  the  law  is  perfect,  only  where  the  power  with  which  Justice 
carries  the  sword  is  equaled  by  the  skill  with  which  she  holds  the 
scales. 

Law  is  an  uninterrupted  labor,  and  not  of  the  State  power  only, 
but  of  the  entire  people.  The  entire  life  of  the  law,  embraced  in 
one  glance,  presents  us  with  the  same  spectacle  of  restless  striv- 
ing and  working  of  a  whole  nation,  afforded  by  its  activity  in  the 
domain  of  economic  and  intellectual  production.  Every  individual 
placed  in  a  position  in  which  he  is  compelled  to  defend  his  legal 


1  [By  Rudolph  von  Jhering. 

From  ^' The  Struggle  for  Law",  Ch.  I,  1st  ed.,  Chicago,  1879,  Calla- 
ghan  and  Company. 

The  translation  is  by  John  J.  Lalor. 

For  a  biographical  sketch  of  von  Jhering,  see  2d  ed.  of  the  American 
translation,  Callaghan  and  Company,  Chicago,  1915:  introduction  by 
A.  Kocourek.j 

440 


Chap.   XVII,    §   1.]  THE  STRUGGLE   FOR   LAW  441 

rights,  takes  part  in  this  work  of  the  nation,  and  contributes  his 
mite  towards  the  reaHzation  of  the  idea  of  law  on  earth. 

Doubtless,  this  duty  is  not  incumbent  on  all  to  the  same  extent. 
Undisturbed  by  strife  and  without  offense,  the  life  of  thousands  of 
individuals  passes  away,  within  the  limits  imposed  by  the  law  to 
human  action ;  and  if  we  were  to  tell  them  :  The  law  is  a  warfare, 
they  would  not  understand  us,  for  they  know  it  only  as  a  condi- 
tion of  peace  and  of  order.  And  from  the  point  of  view  of  their 
own  experience,  they  are  entirely  right,  just  as  is  the  rich  heir, 
into  whose  lap  the  fruit  of  the  labor  of  others  has  fallen,  without 
any  toil  to  him,  when  he  questions  the  principle :  property  is 
labor.  The  cause  of  the  illusion  of  both  is  that  the  two  sides  of  the 
ideas  of  property  and  of  law  may  be  subjectively  separated  from 
each  other,  in  such  a  manner, that  enjoyment  and  peace  become 
the  part  of  one,  and  labor  and  strife  of  the  other.  If  we  were  to 
address  ourselves  to  the  latter,  he  would  give  us  an  entirely  op- 
posite answer.  And,  indeed,  property,  like  the  law,  is  a  Janus- 
head  with  a  double  face.  To  some  it  turns  only  one  side,  to 
others  only  the  other ;  and  hence  the  difference  of  the  picture  of 
it  obtained  by  the  two.  This,  in  relation  to  the  law,  applies  to 
whole  generations  as  well  as  to  single  individuals.  The  life  of  one 
generation  is  war,  of  another  peace ;  and  nations,  in  consequence 
of  this  subjective  difference,  are  subject  to  the  same  illusion  pre- 
cisely as  individuals.  A  long  period  of  peace,  and,  as  a  conse- 
quence thereof,  faith  in  eternal  peace,  is  richly  enjoyed,  until  the 
first  gun  dispels  the  pleasant  dream,  and  another  generation  takes 
the  place  of  the  one  which  had  enjoyed  peace  without  having  had 
to  toil  for  it,  another  generation  which  is  forced  to  earn  it  again  by 
the  hard  work  of  war.  Thus,  in  property  and  law,  do  we  find 
labor  and  enjoyment  distributed.  But  the  fact  that  they  belong 
together  does  not  suffer  any  prejudice,  in  consequence.  One  per- 
son has  been  obliged  to  battle  and  to  labor  for  another  who  enjoys, 
and  lives  in  peace.  Peace  without  strife,  and  enjoyment  without 
work,  belong  to  the  days  of  Paradise.  History  knows  both  only 
as  the  result  of  painful,  uninterrupted  effort. 

That,  to  struggle,  is,  in  the  domain  of  law,  what  to  labor,  is, 
in  that  of  economy,  and,  that,  in  what  concerns  its  practical 
necessity  as  well  as  its  moral  value,  that  struggle  is  to  be  placed 
on  an  equal  footing  with  labor  in  the  case  of  property,  is  the  idea 
which  I  propose  to  develop.  I  think,  that  in  so  doing,  I  shall  be 
performing  no  work  of  supererogation,  but,  on  the  contrary,  that 
I  shall  be  making  amends  for  a  sin  of  omission  which  may  rightly 


442  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

be  laid  at  the  door  of  our  theory  of  law ;  and  not  simply  at  the  door 
of  our  philosophy  of  law,  but  of  our  positive  jurisprudence  also. 
Our  theory  of  law,  it  is  only  too  easy  to  perceive,  is  busied  much 
more  with  the  scales  than  with  the  sword  of  Justice.  The  oile- 
sidedness  of  the  purely  scientific  standpoint  from  which  it  con- 
siders the  law,  looking  at  it  not  so  much  as  it  really  is,  as  an  idea 
of  force,  but  as  it  is  logically,  a  system  of  abstract  legal  principles, 
has,  in  my  opinion,  impressed  on  its  whole  way  of  viewing  the  law, 
a  character  not  in  harmony  with  the  bitter  reality.  This  I  in- 
tend to  show. 

The  expression  law  (Recht)  is,  it  is  well  known,  used  in  a  two- 
fold sense,  in  an  objective  sense  and  in  a  subjective  sense.  Law 
(Recht),  in  the  objective  sense  of  the  word,  embraces  all  the  prin- 
ciples of  law  enforced  by  the  State ;  it  is  the  legal  ordering  of  life. 
Law  (Recht),  in  the  subjective  sense  of  the  word,  is,  so  to  speak, 
the  precipitate  of  the  abstract  rule  into  the  concrete  legal  right 
of  the  person.  In  both  directions  the  law  meets  with  opposition. 
In  both  directions,  it  has  to  overcome  that  opposition;  that  is, 
it  has  to  fight  out  or  assert  its  existence  through  a  struggle.  As 
the  real  object  of  my  discussion,  I  have  selected  the  struggle  in 
the  second  direction,  but  I  must  not  omit  to  demonstrate  that  my 
assertion  that  to  struggle  is  of  the  very  essence  of  the  law,  in  the 
former  direction  also,  is  correct. 

In  regard  to  the  realization  of  the  law,  on  the  part  of  the  State, 
this  is  not  contested,  and  it,  therefore,  does  not  call  for  any 
further  exposition.  The  maintenance  of  law  and  order  by  the 
State  is  nothing  but  a  continual  struggle  against  the  law- 
lessness which  violates  them.  But  it  is  otherwise  in  regard  to 
the  origin  of  the  law,  not  only  to  the  origin  of  the  most  primi- 
tive of  all  law,  at  the  beginning  of  history,  but  to  the  re- 
juvenescence of  law  which  is  taking  place  daily  under  our  eyes, 
the  doing  away  with  existing  institutions,  the  putting  to  one  side 
of  existing  principles  of  law  by  new  ones ;  in  short,  in  regard  to 
progress  in  the  domain  of  the  law.  For  here,  to  the  view  which 
I  maintain,  that  the  principles  of  jurisprudence  are  subject  to  the 
same  law  in  their  origin  as  in  the  rest  of  their  history,  there  is, 
nevertheless,  another  theory  opposed,  one  which  is  still,  at  least 
in  our  science  of  Roman  law,  universally  admitted,  and  which  I 
may  briefly  characterize  after  its  two  chief  representatives  as  the 
Savigny-Puchta  theory  of  the  origin  of  the  law.  According  to 
this  theory,  the  formation  of  the  body  of  principles  of  jurispru- 
dence is  effected  by  a  process  as  unnoticed  and  as  painless  as  is 


Chap.   XVII,    §    1.]  THE   STRUGGLE    FOR   LAW  443 

the  formation  or  growth  of  language.  The  building  up  of  the 
body  of  principles  of  jurisprudence  calls  for  no  strife,  no  struggle. 
It  is  not  even  necessary,  according  to  this  theory,  to  go  in  search 
of  them,  for  the  principles  of  jurisprudence  are  nothing  but  the 
quiet  working  power  of  truth  which,  without  any  violent  effort, 
slowly  but  surely  makes  its  way ;  the  power  of  conviction  to  which 
minds  gradually  open  and  to  which  they  give  expression  by  their 
acts :  a  new  principle  of  jurisprudence  comes  into  being  with  as 
little  trouble  as  any  rule  of  grammar.  The  principle  of  the  old 
Roman  law,  that  the  creditor  might  sell  his  insolvent  debtor  as  a 
slave  in  foreign  parts,  or  that  the  owner  of  a  thing  might  claim  it 
from  any  one  in  whose  possession  he  found  it,  would  have  been 
formed  in  ancient  Rome,  according  to  this  view,  scarcely  in  any 
other  manner  than  that  in  which  the  grammatical  rule  that  cum 
governs  the  ablative  was  formed. 

This  is  the  idea  of  the  origin  of  the  law  which  I  myself  had 
when  I  left  the  university,  and  under  the  influence  of  which  I  lived 
for  a  good  many  years.  Has  this  idea  any  claim  to  truth?  It 
must  be  admitted  that  the  law,  like  language,  has  an  unintended, 
unconscious  development,  or,  to  call  it  by  the  traditional  expres- 
sion, an  organic  development  from  within  outward.  To  this  de- 
velopment, we  owe  all  those  principles  of  law  which  are  gradually 
accumulated  from  the  autonomous  balancing  of  the  accounts  of 
the  legal  rights  of  men  in  their  dealings  with  one  another,  as  well 
as  all  those  abstractions,  consequences  and  rules  deduced  by 
science  from  existing  laws,  and  presented  by  it  to  the  conscious- 
ness. But  the  power  of  those  two  factors,  the  intercourse  of  man 
with  man,  and  science,  is  a  limited  one.  It  can  regulate  the  mo- 
tion of  the  stream,  within  existing  limits,  and  even  hasten  it ;  but 
it  is  not  great  enough  to  throw  down  the  dikes  which  keep  the 
current  from  taking  a  new  direction.  Legislation  alone  can  do 
this ;  that  is,  the  action  of  the  State  power  intentionally  directed 
to  that  end ;  and  hence  it  is  not  mere  chance,  but  a  necessity, 
deepy  rooted  in  the  nature  of  the  law,  that  all  thorough  reforms 
of  the  mode  of  procedure  and  of  positive  law  may  be  traced  back 
to  legislation.  True  it  is,  that  the  influence  of  a  change  made 
by  the  legislative  power  in  the  existing  law,  may  possibly  be  limited 
entirely  to  the  sphere  of  the  abstract,without  extending  its  effects 
down  into  the  region  of  the  concrete  relations  which  have  been 
formed  on  the  basis  of  the  law  hitherto  —  to  a  new  change  in  the 
machinery  of  law,  a  replacing  of  a  worn-out  screw  or  roller  by  a 
more  perfect  one.     But  it  very  frequently  happens  that  things 


444  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

are  in  such  a  condition  that  the  change  can  be  effected  only  at  the 
expense  of  an  exceedingly  severe  encroachment  on  existing  rights 
and  private  interests.  In  the  course  of  time,  the  interests  of 
thousands  of  individuals,  and  of  whole  classes,  have  become  bound 
up  with  the  existing  principles  of  law  in  such  a  manner  that  these 
cannot  be  done  away  with,  without  doing  the  greatest  injury  to 
the  former.  To  question  the  principle  of  law  or  the  institution, 
means  a  declaration  of  war  against  all  these  interests,  the  tearing 
away  of  a  polyp  which  resists  the  effort  with  a  thousand  arms. 
Hence  every  such  attempt,  in  natural  obedience  to  the  law  of  self- 
preservation,  calls  forth  the  most  violent  opposition  of  the  im- 
periled interests,  and  with  it  a  struggle  in  which,  as  in  every 
struggle,  the  issue  is  decided  not  by  the  weight  of  reason,  but 
by  the  relative  strength  of  opposing  forces;  the  result  being  not 
infrequently  the  same  as  in  the  parallelogram  of  forces  —  a  devia- 
tion from  the  original  line  towards  the  diagonal.  Only  thus, 
does  it  become  intelligible,  that  institutions  on  which  public 
opinion  has  long  since  passed  sentence  of  death  continue  to  enjoy 
life  for  a  great  length  of  time.  It  is  not  the  vis  inertios  which 
preserves  their  life,  but  the  power  of  resistance  of  the  interests 
centering  about  their  existence. 

But  in  all  such  cases,  wherever  the  existing  law  is  backed  by 
interests,  the  new  has  to  undergo  a  struggle  to  force  its  way  into 
the  world  —  a  struggle  which  not  infrequently  lasts  over  a 
whole  century.  This  struggle  reaches  its  highest  degree  of  in- 
tensity when  the  interests  in  question  have  assumed  the  form  of 
vested  rights.  Here  we  find  two  parties  opposed  each  to  the  other, 
each  of  which  takes  as  its  device  the  sacredness  of  the  law;  the 
one  that  of  the  historical  law,  the  law  of  the  past ;  the  other  that 
of  the  law  which  is  ever  coming  into  existence,  ever  renewing  its 
youth,  the  eternal,  primordial  law  of  mankind.  A  case  of  conflict 
of  the  idea  of  law  with  itself  which,  for  the  individuals  who  have 
staked  all  their  strength  and  their  very  being  for  their  convic- 
tions and  finally  succumb  to  the  supreme  decree  of  history,  has 
in  it  something  that  is  really  tragic.  All  the  great  achievements 
which  the  history  of  the  law  has  to  record  —  the  abolition  of 
slavery,  of  serfdom,  the  freedom  .of  landed  property,  of  industry, 
of  conscience,  etc.  —  all  have  had  to  be  won,  in  the  first  instance, 
in  this  manner,  by  the  most  violent  struggles,  which  often  lasted 
for  centuries.  Not  infrequently  streams  of  blood,  and  everywhere 
rights  trampled  under  foot,  mark  the  way  which  the  law  has 
traveled  during  such  conflict.     For  the  law  is  Saturn  devouring 


Chap.  XVII,   §   1.]  THE  STRUGGLE   FOR  LAW  445 

his  own  children.  The  law  can  renew  its  youth  only  by  break- 
ing with  its  own  past.  A  concrete  legal  right  or  principle  of  law, 
which,  simply  because  it  has  come  into  existence,  claims  an  un- 
limited and  therefore  eternal  existence,  is  a  child  lifting  its  arm 
against  its  own  mother;  it  despises  the  idea  of  the  law  when  it 
appeals  to  that  idea ;  for  the  idea  of  the  law  is  an  eternal  Becom- 
ing ;  but  that  which  has  become  must  yield  to  the  new  Becoming, 

since 

Alles  was  entsteht 

1st  werth  dass  es  zu  Grunde  geht. 

And  thus  the  historical  development  of  law  presents  us  with  a 
picture  of  research,  struggle,  fight,  in  short,  of  toilsome,  wearying 
endeavor.  The  human  mind  working  unconsciously  towards  the 
formation  of  language  is  met  by  no  forcible  resistance,  and  art 
has  no  opponent  to  overcome  but  its  own  past  —  the  prevailing 
taste.  It  is  not  so  with  law  considered  as  an  end.-  Cast  into  the 
chaotic  whirl  of  human  aims,  endeavors,  interests,  it  has  forever 
to  feel  and  seek  in  order  to  find  the  right  way,  and  when  it  has 
found  it,  to  overthrow  the  obstacles  which  would  impede  its 
course.  If  it  be  an  undoubted  fact,  that  this  development,  like 
that  of  art  or  language,  is  governed  by  law  and  is  uniform,  it  can- 
not be  denied  that  it  departs  largely  from  the  latter  in  the  manner 
in  which  it  takes  place ;  and  in  this  sense,  therefore,  we  are  com- 
pelled decidedly  to  reject  the  parallel  instituted  by  Savigny  —  a 
parallel  which  found  universal  favor  so  rapidly  —  between  law 
on  the  one  hand  and  language  and  art  on  the  other. 

This  doctrine  is  false,  but  not  dangerous  as  a  philosophical 
opinion.  As  a  political  maxim,  however,  it  contains  an  error 
pregnant  with  the  most  ominous  consequences  imaginable,  be- 
cause it  feeds  man  with  hope  where  he  should  act,  and  act  with 
a  full  and  clear  consciousness  of  the  object  aimed  at,  and  with 
all  his  strength.  It  feeds  him  with  the  hope,  that  things  will 
take  care  of  themselves,  and  that  the  best  he  can  do,  is  to  fold 
his  arms  and  confidently  wait  for  what  may  gradually  spring  to 
light  from  that  primitive  source  of  all  law  called,  "  the  natural 
conviction  of  legal  right."  Hence  the  a^version  of  Savigny  and 
of  all  his  disciples  for  the  interference  of  legislation,  and  hence 
the  complete  ignoring  of  the  real  meaning  of  custom,  in  the 
Puchta  theory  of  the  law  of  custom.  Custom  to  Puchta  is 
nothing  but  a  mere  mode  of  discovering  what  conviction  as  to 
the  legally  right  is :  but  that  this  very  conviction  is  first 
formed  through  the  agency  of  its  own  action,  that  through  this 


446  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

action  it  first  demonstrates  its  power  and  its  calling  to  govern 
life ;  in  short  that  the  principle  :  the  law  is  an  idea  which  involves 
force  —  to  this  the  eyes  of  this  great  mind  were  entirely  closed. 
But,  in  this,  Puchta  was  only  paying  tribute  to  the  time  in  which 
he  lived.  For  his  time  was  the  romantic  in  our  poetry,  and  the 
person  who  does  not  recoil  from  transferring  the  idea  of  the  roman- 
tic to  jurisprudence,  and  who  will  take  the  trouble  to  compare  the 
corresponding  directions  followed  in  the  two  spheres  with  one 
another,  will  perhaps  not  find  fault  with  me,  when  I  allege  that  the 
Historical  School  in  law  might  just  as  well  have  been  called  the 
romantic.  That  law  or  the  principle  of  legal  right  comes  into  exist- 
encie  or  is  formed  painlessly,  without  trouble,  without  action, 
like  the  vegetable  creation,  is  a  really  romantic  notion,  that  is, 
a  notion  based  on  a  false  idealization  of  past  conditions.  Stern 
reality  teaches  us  the  contrary,  and  not  alone  that  small  part  of 
that  reality  which  we  have  before  our  eyes  ourselves,  and  which 
presents  us,  almost  everywhere,  with  the  most  strenuous  endeavors 
of  nations  in  respect  to  the  formation  of  their  legal  relations  — 
questions  of  the  gravest  nature  which  crowd  one  upon  another ;  but 
the  impression  remains  the  same,  no  matter  what  part  of  the  past 
we  contemplate.  Savigny's  theory  can,  therefore,  appeal  to  noth- 
ing but  pre-historic  times  of  which  we  have  no  information. 

But,  if  we  may  be  permitted  to  indulge  in  hypothesis  in  relation 
to  them,  I  am  willing  to  oppose  to  Savigny's,  which  represents 
them  as  the  time  of  the  peaceable,  gentle  evolution  of  the  prin- 
ciples of  law  from  the  inner  consciousness  of  popular  conviction, 
my  own  hypothesis,  which  is  diametrically  opposed  to  his;  and 
it  will  have  to  be  granted  to  me  that,  to  say  the  least,  it  has  in  its 
favor,  the  analogy  of  what  we  can  see  of  the  historical  develop- 
ment of  law,  and  as  I  believe,  the  advantage,  likewise,  of  greater 
psychological  probability.  Primitive  times !  It  was  once  the 
fashion  to  deck  them  out  in  every  beautiful  quality:  truth, 
frankness,  fidelity,  simplicity,  religious  faith;  and  in  such  soil, 
principles  of  law  would  certainly  have  been  able  to  thrive  without 
any  other  force  to  assist  their  growth  than  the  power  of  the  con- 
viction of  right :  they  would  not  have  needed  the  sword,  nor  even 
the  unassisted  arm.  But  today  we  all  know  that  the  pious  and 
hoary  past  was  noted  for  qualities  the  very  opposite  of  these, 
and  the  supposition  that  they  were  able  to  get  their  principles  of 
law  in  an  easier  manner  than  all  later  generations  can  scarcely 
expect  to  be  credited  now.  For  my  part,  I  am  convinced  that 
the  labor  which  they  must  have  expended  on  their  task  was  one 


Chap.   XVII,    §  2.]        COMPROMISE   NATURE   OF   LAW  447 

still  more  difficult,  and  that  even  the  simplest  principles  of  law, 
such,  for  instance,  as  those  named  above,  from  the  most  ancient 
Roman  law,  of  the  authority  of  the  owner  to  claim  back  his  chattel 
from  any  one  in  whose  possession  it  was  found,  and  of  the  creditor 
to  sell  his  insolvent  debtor  into  foreign  servitude,  had  to  be  first 
fought  out  by  the  hardest  battles,  before  they  obtained  unques- 
tioned recognition.  But,  be  this  as  it  may,  we  may  leave  the  most 
primitive  times  out  of  consideration.  The  information  afforded  us 
by  the  remotest  history  on  the  origin  of  law  is  sufficient.  But  this 
information  is  to  the  effect :  the  birth  of  law  like  that  of  men 
has  been  uniformly  attended  by  the  violent  throes  of  childbirth. 

And  why  should  we  complain  that  it  is  thus  attended?  The 
very  fact  that  their  law  does  not  fall  to  the  lot  of  nations  without 
trouble,  that  they  have  had  to  struggle,  to  battle  and  to  bleed  for 
it,  creates  between  nations  and  their  laws  the  same  intimate  bond 
as  is  created  between  the  mother  and  her  child  when,  at  its  birth, 
she  stakes  her  own  life.  A  principle  of  law  won  without  toil  is  on 
a  level  with  the  children  brought  by  the  stork :  what  the  stork  has 
brought,  the  fox  or  the  vulture  can  take  away  again.  But  from  the 
mother  who  gave  it  birth,  neither  the  fox  nor  the  vulture  can  take 
the  child  away ;  and  just  as  little  can  a  people  be  deprived  of  the 
laws  or  institutions  which  they  have  had  to  labor  and  to  bleed  for, 
in  order  to  obtain.  We  may  even  claim  that  the  energy  and  love 
with  which  a  people  hold  to  and  assert  their  laws,  are  determined 
by  the  amount  of  toil  and  effort  which  it  cost  them  to  obtain  them. 
Not  mere  custom,  but  sacrifice,  forges  the  strongest  bond  between 
a  people  and  their  principles  of  legal  right ;  and  God  does  not  make 
a  gift  of  what  it  needs  to  the  nation  He  wishes  well,  nor  does  He 
make  the  labor  necessary  to  its  acquisition  easy,  but  difficult.  In 
this  sense,  I  do  not  hesitate  to  say :  The  struggle  needed  by  laws 
to  fight  their  way  into  existence  is  not  a  curse,  but  a  blessing. 

Section  2  —  THE   COMPROMISE  NATURE  OF  LAW 

[In  connection  with  the  foregoing  chapter  which  emphasizes  the 
element  of  force  and  struggle  in  the  development  of  law,  it  is 
relevant  to  notice  a  derivative  idea  which,  however,  on  account 
of  its  importance  and  interest,  represents  an  independent  stand- 
point —  the  "  compromise  "  theory  of  law  of  Adolph  Merkel, 
late  professor  of  law  at  Strassburg.^ 

^  [This  theory  is  discussed  in  the  author's  "Recht  und  Macht"  in 
Schmoller's  "Jahrbuch  fiir  Gesetzgebung,  Verwaltung,  und  Volkswirt- 


448  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

Says  the  author :  ''  The  interests  which  the  law  protects  and 
on  which  it  exerts  its  influence  are  never  completely  in  harmony. 
There  is  competition  among  these  interests." 

The  legalistic  point  of  view  looks  upon  interests  as  they  actually 
exist  in  the  world  as  outside  the  sphere  of  law.  On  this  view, 
the  State  alone  has  interests,  and  if  the  interests  of  the  State 
happen  to  coincide  with  any  particular  interest  of  private  persons, 
it  is  in  legal  theory  purely  a  non-essential  consideration.  Legal- 
istic political  science,  which  has  the  fortune  to  be  somewhat  more 
socialized  in  its  scope  of  investigation  than  pure  legal  theory  in 
the  traditional  sense,  would  no  doubt  take  some  account  of  the 
purely  human  factor  —  the  existence  and  collision  of  private  in- 
terests —  in  explaining  the  State ;  but  the  law  as  an  independent 
field  has  not,  until  comparatively  recent  times,  seen  any  need  of 
explaining  the  social  substratum  upon  which  legal  rules  rest  and 
through  which  they  operate.  Incidentally,  that  narrow  point  of 
view  has  the  efi^ect  of  shutting  out  all  understanding  of  legal  ideas 
and  legal  institutions  as  evolutionary  products. 

"  If  one  of  these  interests  which  the  law  protects  succeeds  in 
gaining  an  exaggerated  importance  in  the  law,  it  will  be  at  the 
cost  of  other  competing  interests.  There  is,  indeed,  generally 
only  relative  conflict  in  such  cases,  but  yet  it  is  such  that  a  com- 
plete and  enduring  adjustment  is  impossible,  and  when  conflict 
is  overcome  in  one  form,  it  reappears  again  in  another. 

''  There  are  two  classes  of  such  interests.  As  to  one  class,  the 
State  acts  by  an  energetic,  unified,  and  diversified  administration, 
through  definite  and  stable  State  institutions.  As  to  the  other 
class,  the  State  leaves  a  wide  scope  of  freedom  and  adaptation 
where  interests  may  freely  compete  without  the  interference  of 
the  law." 

This  statement  may  be  illustrated  but  in  a  somewhat  different 
sense  than  that  intended  by  the  author.  In  the  case  of  the 
interests  of  labor  unions,  the  administration  of  the  law  leaves 
a  much  wider  field  untouched  than,  for  example,  in  the  law 
of  contracts.  The  reasons  are  historical,  political,  and  social. 
The  historical  reason  is  that  group  activities  in  labor  matters  are 
much  later  in  appearance  in  any  system  of  law  than  the  relations 

schaft",  V,  1,  seq.;  in  his  "Elemente  der  allgemeinen  Rechtslehre",  sec, 
11 :  and  his  "  Juristisehe  Enzyklopadie",  sec.  40.  See  also  the  memoria] 
essay  by  the  author  on  .Jhering,  published  as  an  appendix  to  Jhering't 
"Law  as  a  Means  to  an  End"  (*'Zweck  im  Recht"),  "Modern  Legal 
Philosophy  Series",  V,  pp.  427,  452.  The  above  abstract  is  based  or 
his  "  Elemente."] 


Chap.   XVII,    §  2.]        COMPROMISE   NATURE   OF   LAW  449 

growing  out  of  contract.  The  political  reason  is  that  the  adminis- 
trativ^e  machinery  is  "  on  the  fence  "  between  organizations  of 
labor  and  organizations  of  wealth,  and  does  not  find  it  possible 
to  make  a  choice.  The  parties  in  interest  are  too  equally  matched  ; 
and  a  bad  selection  would  be  fatal  to  political  expediency.  The 
social  reason  is  that  the  problem  is  not  yet  well  enough  understood 
in  all  its  ethical  and  economic  bearings.  Therefore,  in  this  case, 
all  arms  of  legal  administration  —  the  legislative,  the  judicial,  and 
the  executive  —  remain,  as  far  as  possible,  in  an  attitude  of  pas- 
siveness. 

The  author  continues :  "  Since  there  is  no  standard  by  which 
the  value  of  an  interest  in  comparison  with  another  can  be  fixed 
with  logical  certainty,  and  for  all  time,  and  since  the  relations 
themselves- upon  which  interests  are  based  are  constantly  chang- 
ing, it  is  impossible  for  the  content  of  the  law  to  deal  justly  with 
the  claims  up:)n  which  it  operates.  Every  legal  rule,  measured 
by  the  claims  which  it  circumscribes,  must  be  out  of  proportion 
in  one  direction  or  another." 

It  follows,  of  course,  that  these  inequalities  engender  new 
conflicts.  There  will  be  a  party  seeking  reforms  in  the  law,  and 
an  opposing  party  which  will  attempt  to  maintain  existing  con- 
ditions favorable  to  that  party. 

"  A  contrast  of  more  universal  significance  arises  out  of  the 
relation  of  law  and  power.  Law  cannot  attain  its  object  except 
in  association  with  the  forces  which  reside  in  society.  The  sover- 
eign interest  points  to  the  use  of  law  and  the  employment  of  its 
power  in  the  service  of  general  interests.  In  this  way  a  natural 
tie  is  established  between  law  and  force.  But  this  bond  does  not 
prevent  the  existence  of  a  certain  amount  of  opposition  between 
them.  Law  is  an  organ  which  represents  the  interests  of  the 
governing  class  and  of  the  governed.  These  interests  are  never 
completely  in  accord.  There  is  competition  for  the  preponderat- 
ing influence  on  the  content  of  the  legal  system. 

"  Forms  of  State  have  been  conceived  where  it  was  thought 
complete  harmony  of  interests  would  prevail,  or  the  efi^ort  has  been 
made  to  discover  definite  forms  of  State  organization  which  ac- 
complish that  purpose ;  but  it  is  easy  to  see  that  all  such  attempts 
do  not  get  above  the  level  of  imagination.  Thought  and  effort 
have  been  employed  to  do  away  with  every  relation  of  the  govern- 
ing and  the  gov^erned,  by  an  equalization  of  all  power  relations. 
But  here,  too,  we  are  in  an  Utopian  realm.  Even  if  it  were  possible 
to  think  out  and  put  into  practice  a  system  whereby  human 


450  FACTORS    OF    LEGAL   EVOLUTION  [Part   II. 

powers  would  be  equally  divided  into  as  many  parts  as  there  are 
individuals  (which  is  not  the  case),  one  of  two  things  would  result. 
Either,  first,  the  State  and  law  would  be  abolished  in  accordance 
with  the  dream  of  the  sincere  socialist ;  or,  second,  the  State  and 
law  would  come  under  the  control  of  a  majority,  in  which  case  the 
result  would  be  what  was  above  emphasized  (and  experienced  by 
existing  rule  by  majorities)  in  all  other  forms  of  government. 

"  Since  the  relations  pointed  out  cannot  be  removed,  there  will 
arise,  naturally,  a  struggle  for  power  among  all  those  social  ele- 
ments which  for  the  time  being  are  able  to  participate  in  it,  and 
there  will  follow  a  plenitude  of  oppositions  of  the  most  diverse  sort, 
whose  operation  the  law  is  impotent  to  counteract. 

"  A  progressive  movement  has  taken  place  in  the  development 
of  legal  systems  which  secure  to  heterogeneous  interests  a  wide 
scope  of  concurrent  activity,  as  well  as  in  promoting  in  a  definite 
way  a  reconciliation  of  view  as  to  what  is  just,  and,  likewise,  in 
promoting  agreement  on  certain  fundamental  ideas  which  should 
find  expression  in  the  law.  This  movement  is  synchronous  with 
the  establishment  and  development  of  a  sphere  apart  from  the 
field  of  combat  where  all  interests  may  be  represented  and  may 
adjust  their  difficulties  in  a  peaceable  way. 

"  At  the  same  time,  however,  this  development  has  led  to  a 
multiplication  of  new  oppositions  and  an  accentuation  of  old  ones." 

It  results,  as  the  author  continues,  when  we  come  to  examine 
more  closely  into  the  facts,  that  the  object  sought  of  harmonizing 
interests  and  views,  recedes  farther  into  distance.  Law,  con- 
sidered with  reference  to  the  conflicting  interests  upon  which  it 
operates,  is  in  the  nature  of  a  treaty  of  peace ;  but  since  the  power 
relations  are  constantly  changing  which  the  law  from  time  to  time 
attempts  to  harmonize,  it  can  have  no  enduring  existence.  Like 
every  treaty  of  peace,  the  law  has  a  compromise  character,  and  it 
cannot  strip  itself  of  this  attribute  unless  it  should  affirmatively 
take  sides  with  one  class  of  interests  for  the  suppression  of  others. 

The  development  of  law  continues,  therefore,  to  be  what  it  has 
always  been,  and  always  will  be  as  long  as  there  remains  a  dif- 
ference in  individuals  and  a  difference  in  the  conditions  of  life, 
—  a  compromise,  a  measure  of  forces.] 


Chapter  XVIII 
THE   USE  OF  CONFLICT! 

§  1.    The  Mystery  of  Progress.  I  §  3.    Causes  and  Conditions  of  Su- 

§  2.   The  Stagnation  of  Fixed  Law.  |  periority  among  Nations. 

§  1.  The  Mystery  of  Progress.  "The  difference  between  pro- 
gression and  stationary  inaction  ",  says  one  of  our  greatest  living 
writers,  "  is  one  of  the  great  secrets  which  science  has  yet  to  pene- 
trate." I  am  sure  I  do  not  pretend  that  I  can  completely  pene- 
trate it ;  but  it  undoubtedly  seems  to  me  that  the  problem  is  on 
the  verge  of  solution,  and  that  scientific  successes  in  kindred 
fields  by  analogy  suggest  some  principles  which  wholly  remove 
many  of  its  difficulties,  and  indicate  the  sort  of  way  in  which 
those  which  remain  may  hereafter  be  removed  too. 

But  what  is  the  problem?  Common  English,  I  might  perhaps 
say  common  civilized  thought,  ignores  it.  Our  habitual  instruc- 
tors, our  ordinary  conversation,  our  inevitable  and  ineradicable 
prejudices  tend  to  make  us  think  that  "  Progress  "  is  the  normal 
fact  in  human  society,  the  fact  which  we  should  expect  to  see,  the 
fact  which  we  should  be  surprised  if  we  did  not  see.  But  history 
refutes  this.  The  ancients  had  no  conception  of  progress;  they 
did  not  so  much  as  reject  the  idea ;  they  did  not  even  entertain 
the  idea.  Oriental  nations  are  just  the  same  now.  Since  history 
began  they  have  always  been  what  they  are.  Savages,  again, 
do  not  improve ;  they  hardly  seem  to  have  the  basis  on  which 
to  build,  much  less  the  material  to  put  up  anything  worth  having. 
Only  a  few  nations,  and  those  of  European  origin,  advance ;  and 
yet  these  think  —  seem  irresistibly  compelled  to  think  —  such 
advance  to  be  inevitable,  natural,  and  eternal.  Why,  then, 
is  this  great  contrast  ? 

Before  we  can  answer,  we  must  investigate  more  accurately. 
No  doubt  history  shows  that  most  nations  are  stationary  now; 

1  [By  Walter  Bagehot. 

Reprinted  from  "Physics  and  Politics"  (1869),  chap,  ii.] 
451 


452  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

but  it  affords  reason  to  think  that  all  nations  once  advanced. 
Their  progress  was  arrested  at  various  points;  but  nowhere, 
probably  not  even  in  the  hill  tribes  of  India,  not  even  in  the  Anda- 
man Islanders,  not  even  in  the  savages  of  Terra  del  Fuego,  do  we 
find  men  who  have  not  got  some  way.  They  have  made  their 
little  progress  in  a  hundred  different  ways ;  they  have  framed  with 
infinite  assiduity  a  hundred  curious  habits ;  they  have,  so  to  say, 
screwed  themselves  into  the  uncomfortable  corners  of  a  complex 
life,  which  is  odd  and  dreary,  but  yet  is  possible.  And  the  corners 
are  never  the  same  in  any  two  parts  of  the  world.  Our  record 
begins  with  a  thousand  unchanging  edifices,  but  it  shows  traces 
of  previous  building.  In  historic  times  there  has  been  little  prog- 
ress ;  in  prehistoric  times  there  must  have  been  much. 

In  solving  or  trying  to  solve  the  question,  we  must  take  notice 
of  this  remarkable  difference,  and  explain  it  too,  or  else  we  may 
be  sure  our  principles  are  utterly  incomplete,  and  perhaps  alto- 
gether unsound.  But  what  then  is  that  solution,  or  what  are  the 
principles  which  tend  toward  it?  Three  laws,  or  approximate 
laws,  may,  I  think,  be  laid  down,  with  only  one  of  which  I  can 
deal  in  this  paper,  but  all  three  of  which  it  will  be  best  to  state, 
that  it  may  be  seen  what  I  am  aiming  at. 

First.  In  every  particular  state  of  the  world,  those  nations 
which  are  strongest  tend  to  prevail  over  the  others ;  and  in  cer- 
tain marked  peculiarities  the  strongest  tend  to  be  the  best. 

Secondly.  Within  every  particular  nation  the  type  or  types 
of  character  then  and  there  most  attractive  tend  to  prevail ;  and 
the  most  attractive,  though  with  exceptions,  is  what  we  call  the 
best  character. 

Thirdly.  Neither  of  these  competitions  is  in  most  historic 
conditions  intensified  by  extrinsic  forces,  but  in  some  conditions, 
such  as  those  now  prevailing  in  the  most  influential  part  of  the 
world,  both  are  so  intensified. 

These  are  the  sort  cf  doctrines  with  which,  under  the  name  of 
"  natural  selection  "  in  physical  science,  we  have  become  familiar ; 
and  as  every  great  scientific  conception  tends  to  advance  its 
boundaries  and  to  be  of  use  in  solving  problems  not  thought  of 
when  it  was  started,  so  here  what  was  put  forward  for  mere  animal 
history  may,  with  a  change  of  form,  but  an  identical  essence,  be 
applied  to  human  history. 

At  first  some  objection  was  raised  to  the  principle  of  "  natural 
selection  "  in  physical  science  upon  religious  grounds ;  it  was  to  be 
expected  that  so  active  an  idea  and  so  large  a  shifting  of  thought 


Chap.   XVIII.]  THE   USE   OF   CONFLICT  453 

would  seem  to  imperil  much  which  men  valued.  But  in  this  as 
in  other  cases,  the  objection  is,  I  think,  passing  away;  the  new 
principle  is  more  and  more  seen  to  be  fatal  to  mere  outworks 
of  religion,  not  to  religion  itself.  At  all  events,  to  the  sort  of 
application  here  made  of  it,  which  only  amounts  to  searching 
out  and  following  up  an  analogy  suggested  by  it,  there  is  plainly 
no  objection.  Every  one  now  admits  that  human  history  is  guided 
by  certain  laws,  and  all  that  is  here  aimed  at  is  to  indicate,  in  a 
more  or  less  distinct  way,  an  infinitesimally  small  portion  of  such 
laws. 

The  discussion  of  these  three  principles  cannot  be  kept  quite 
apart  except  by  pedantry ;  but  it  is  almost  exclusively  with  the 
first  —  that*  of  the  competition  between  nation  and  nation,  or 
tribe  and  tribe  (for  I  must  use  these  words  in  their  largest  sense, 
and  so  as  to  include  every  cohering  aggregate  of  human  beings) 
—  that  I  can  deal  now ;  and  even  as  to  that  I  can  but  set  down  a 
few  principal  considerations. 

The  progress  of  the  military  art  is  the  most  conspicuous,  I  was 
about  to  say  the  most  showy,  fact  in  human  history.  Ancient  civ- 
ilization may  be  compared  with  modern  in  many  respects,  and 
plausible  arguments  constructed  to  show  that  it  is  better;  but 
you  cannot  compare  the  two  in  military  power.  Napoleon  could 
indisputably  have  conquered  Alexander ;  our  Indian  army  would 
not  think  much  of  the  Retreat  of  the  Ten  Thousand.  And  I 
suppose  the  improvement  has  been  continuous :  I  have  not  the 
slightest  pretence  to  special  knowledge ;  but,  looking  at  the  mere 
surface  of  the  facts,  it  seems  likely  that  the  aggregate  battle  array, 
so  to  say,  of  mankind,  the  fighting  force  of  the  human  race,  has 
constantly  and  invariably  grown.  It  is  true  that  the  ancient 
civilization  long  resisted  the  "  barbarians ",  and  was  then  de- 
stroyed by  the  barbarians.  But  the  barbarians  had  improved. 
"  By  degrees ",  says  a  most  accomplished  writer,  "  barbarian 
mercenaries  came  to  form  the  largest,  or  at  least  the  most  effec- 
tive, part  of  the  Roman  armies.  The  body-guard  of  Augustus 
had  been  so  composed ;  the  praetorians  were  generally  selected  from 
the  bravest  frontier  troops,  most  of  them  Germans."  "  Thus,'* 
he  continues,  "  in  many  ways  was  the  old  antagonism  broken 
down,  Romans  admitting  barbarians  to  rank  and  office,  bar- 
barians catching  something  of  the  manners  and  culture  of 
their  neighbors.  And  thus,  when  the  final  movement  came,  the 
Teutonic  tribes  slowly  established  themselves  through  the  prov- 
inces, knowing  something  of   the  system    to  which  they  came, 


454  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

and  not  unwilling  to  be  considered  its  members."  Taking  friend 
and  foe  together,  it  may  be  doubted  whether  the  fighting  capacity 
of  the  two  armies  was  not  as  great  at  last,  when  the  empire  fell, 
as  ever  it  was  in  the  long  period  while  the  empire  prevailed.  Dur- 
ing the  Middle  Ages  the  combining  power  of  men  often  failed ; 
in  a  divided  time  you  cannot  collect  as  many  soldiers  as  in  a  con- 
centrated time.  But  this  difficulty  is  political,  not  military.  If 
you  added  up  the  many  little  hosts  of  any  century  of  separation, 
they  would  perhaps  be  found  equal  or  greater  than  the  single  host, 
or  the  fewer  hosts,  of  previous  centuries  which  were  more  united. 
Taken  as  a  whole,  and  allowing  for  possible  exceptions,  the  ag- 
gregate fighting  power  of  mankind  has  grown  immensely,  and 
has  been  growing  continuously  since  we  knew  anything  about  it. 

Again,  this  force  has  tended  to  concentrate  itself  more  and  more 
in  certain  groups  which  we  call  ''  civilized  nations."  The  literati 
of  the  last  century  were  forever  in  fear  of  a  new  conquest  of  the 
barbarians,  but  only  because  their  imagination  was  overshadowed 
and  frightened  by  the  old  conquests.  A  very  little  consideration 
would  have  shown  them  that,  since  the  monopoly  of  military 
inventions  by  cultivated  states,  real  and  effective  military  power 
tends  to  confine  itself  to  those  states.  The  barbarians  are  no 
longer  so  much  as  vanquished  competitors ;  they  have  ceased  to 
compete  at  all. 

The  military  vices,  too,  of  civilization  seem  to  decline  just  as 
its  military  strength  augments.  Somehow  or  other  civilization 
does  not  make  men  effeminate  or  unwarlike  now  as  it  once  did. 
.There  is  an  improvement  in  our  fibre  —  moral,  if  not  physical. 
In  ancient  times  city  people  could  not  be  got  to  fight  —  seemingly 
could  not  fight;  they  lost  their  mental  courage,  perhaps  their 
bodily  nerve.  But  nowadays  in  all  countries  the  great  cities 
could  pour  out  multitudes  wanting  nothing  but  practice  to  make 
good  soldiers,  and  abounding  in  bravery  and  vigor.  This  was 
so  in  America ;  it  was  so  in  Prussia ;  and  it  would  be  so  in  Eng- 
land too.  The  breed  of  ancient  times  was  impaired  for  war  by 
trade  and  luxury,  but  the  modern  breed  is  not  so  impaired. 

A  curious  fact  indicates  the  same  thing  probably,  if  not  cer- 
tainly. Savages  waste  away  before  modern  civilization;  they 
seem  to  have  held  their  ground  before  the  ancient.  There  is  no 
lament  in  any  classical  writer  for  the  barbarians.  The  New  Zea- 
landers  say  that  the  land  will  depart  from  their  children;  the 
Australians  are  vanishing;  the  Tasmanians  have  vanished.  If 
anything  like  this  had  happened  in  antiquity,  the  classical  moral- 


Chap.   XVIII.]  THE   USE   OF   CONFLICT  455 

ists  would  have  been  sure  to  muse  over  it ;  for  it  is  just  the  large 
solemn  kind  of  fact  that  suited  them.  On  the  contrary,  in  Gaul, 
in  Spain,  in  Sicily  —  everywhere  that  we  know  of  —  the  bar- 
barian endured  the  contact  of  the  Roman,  and  the  Roman  allied 
himself  to  the  barbarian.  Modern  science  explains  the  wasting 
away  of  savage  men ;  it  says  that  we  have  diseases  which  we  can 
bear,  though  they  cannot,  and  that  they  die  away  before  them  as 
our  fatted  and  protected  cattle  died  out  before  the  rinderpest, 
which  is  innocuous,  in  comparison,  to  the  hardy  cattle  of  the 
Steppes.  Savages  in  the  first  year  of  the  Christian  era  w^ere  pretty 
much  what  they  were  in  the  1800th ;  and  if  they  stood  the  contact 
of  ancient  civilized  men,  and  cannot  stand  ours,  it  follows  that 
our  race  is  presumably  tougher  than  the  ancient ;  for  we  have  to 
bear,  and  do  bear  the  seeds  of  greater  diseases  than  those  the 
ancients  carried  with  them.  We  may  use,  perhaps,  the  unvarying 
savage  as  a  metre  to  gauge  the  vigor  of  the  constitutions  to 
whose  contact  he  is  exposed. 

Particular  consequences  may  be  dubious,  but  as  to  the  main 
fact  there  is  no  doubt;  the  military  strength  of  man  has  been 
growing  from  the  earliest  time  known  to  our  history,  straight  on 
till  now.  And  we  must  not  look  at  times  known  by  written  rec- 
ords only ;  we  must  travel  back  to  older  ages,  known  to  us  only 
by  what  lawyers  call  real  evidence  —  the  evidence  of  things. 
Before  history  began  there  was  at  least  as  much  progress  in  the 
military  art  as  there  has  been  since.  The  Roman  legionaries  or 
Homeric  Greeks  were  about  as  superior  to  the  men  of  the  shell 
mounds  and  the  flint  implements  as  we  are  superior  to  them. 
There  has  been  a  constant  acquisition  of  military  strength  by  man 
since  we  know  anything  of  him,  either  by  the  documents  he  has 
composed  or  the  indications  he  has  left. 

The  cause  of  this  military  growth  is  very  plain.  The  strongest 
nation  has  always  been  conquering  the  weaker;  sometimes  even 
subduing  it,  but  always  prevailing  over  it.  Every  intellectual 
gain,  so  to  speak,  that  a  nation  possessed  was  in  the  earliest  times 
made  use  of  —  was  invested  and  taken  out  —  in  war ;  all  else 
perished.  Each  nation  tried  constantly  to  be  the  stronger,  and  so 
made  or  copied  the  best  weapons ;  by  conscious  and  unconscious 
imitation  each  nation  formed  a  type  of  character  suitable  to  war 
and  conquest.  Conquest  improved  mankind  by  the  intermixture 
of  strengths;  the  armed  truce,  which  was  then  called  peace,  im- 
proved them  by  the  competition  of  training  and  the  consequent 
creation  of  new  power.     Since  the  long-headed  men  first  drove 


456  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

the  short-headed  men  out  of  the  best  land  in  Europe,  all  European 
history  has  been  the  history  of  the  superposition  of  the  more 
military  races  over  the  less  military  —  of  the  efforts,  sometimes 
successful,  sometimes  unsuccessful,  of  each  race  to  get  more  mili- 
tary ;  and  so  the  art  of  war  has  constantly  improved. 

But  why  is  one  nation  stronger  than  another  ?  In  the  answer 
to  that,  I  believe,  lies  the  key  to  the  principal  progress  of  early 
civilization,  and  to  some  of  the  progress  of  all  civilization.  The 
answer  is  that  there  are  very  many  advantages  —  some  small  and 
some  great  —  every  one  of  which  tends  to  make  the  nation  which 
has  it  superior  to  the  nation  which  has  it  not ;  that  many  of  these 
advantages  can  be  imparted  to  subjugated  races,  or  imitated  by 
competing  races ;  and  that,  though  some  of  these  advantages  may 
be  perishable  or  inimitable,  yet,  on  the  whole,  the  energy  of  civili- 
zation grows  by  the  coalescence  of  strengths  and  by  the  competi- 
tion of  strengths. 

§  2.  The  Stagfnation  of  Fixed  Law.  The  first  thing  to  acquire 
is,  if  I  may  so  express  it,  the  legal  fibre;  a  polity  first  —  what 
sort  of  polity  is  immaterial !  a  law  first  —  what  kind  of  law  is 
secondary ;  a  person  or  set  of  persons  to  pay  deference  to  — 
though  who  he  is  or  they  are  by  comparison  scarcely  signifies. 

"  There  is  ",  it  has  been  said,  "  hardly  any  exaggerating  the 
difference  between  civilized  and  uncivilized  men;  it  is  greater 
than  the  difference  between  a  tame  and  a  wild  animal ",  because 
man  can  improve  more.  But  the  difference  at  first  was  gained 
in  much  the  same  way.  The  taming  of  animals  as  it  now  goes 
on  among  savage  nations,  and  as  travellers  who  have  seen  it 
describe  it,  is  a  kind  of  selection.  The  most  wild  are  killed  when 
food  is  wanted,  and  the  most  tame  and  easy  to  manage  kept, 
because  they  are  more  agreeable  to  human  indolence,  and  so  the 
keeper  likes  them  best.  Captain  Galton,  who  has  often  seen 
strange  scenes  of  savage  and  of  animal  life,  had  better  describe 
the  process :  "  The  irreclaimably  wild  members  of  every  flock 
would  escape  and  be  utterly  lost;  the  wilder  of  those  that  re- 
mained would  assuredly  be  selected  for  slaughter  whenever  it 
was  necessary  that  one  of  the  flock  should  be  killed.  The  tamest 
cattle  —  those  which  seldom  ran  away,  that  kept  the. flocks  to- 
gether, and  those  which  led  them  homeward  —  would  be  preserved 
alive  longer  than  any  of  the  others.  It  is,  therefore,  these  that 
chiefly  become  the  parents  of  stock  and  bequeath  their  domestic 
aptitudes  to  the  future  herd.  I  have  constantly  witnessed  this 
process  of  selection  among  the  pastoral  savages  of  South  Africa. 


Chap.  XVIII.]  THE   USE  OF  CONFLICT  457 

I  believe  it  to  be  a  very  important  one  on  account  of  its  rigor  and 
its  regularity.  It  must  have  existed  from  the  earliest  times,  and 
have  been  in  continuous  operation,  generation  after  generation, 
down  to  the  present  day." 

Man,  being  the  strongest  of  all  animals,  differs  from  the  rest ; 
he  was  obliged  to  be  his  own  domesticator ;  he  had  to  tame  him- 
self. And  the  way  in  which  it  happened  was,  that  the  most 
obedient,  the  tamest  tribes  are,  at  the  first  stage  in  the  real  struggle 
of  life,  the  strongest  and  the  conquerors.  All  are  very  wild  then ; 
the  animal  vigor,  the  savage  virtue  of  the  race  has  died  out  in 
none,  and  all  have  enough  of  it.  But  what  makes  one  tribe  — 
one  incipient  tribe,  one  bit  of  a  tribe  —  to  differ  from  another  is 
their  relative  faculty  of  coherence.  The  slightest  symptom  of 
legal  development,  the  least  indication  of  a  military  bond,  is  then 
enough  to  turn  the  scale.  The  compact  tribes  win,  and  the  com- 
pact tribes  are  the  tamest.  Civilization  begins,  because  the  be- 
ginning of  civilization  is  a  military  advantage. 

Probably  if  we  had  historic  records  of  the  ante-historic  ages  — 
if  some  superhuman  power  had  set  down  the  thoughts  and  actions 
of  men  ages  before  they  could  set  them  down  for  themselves  — 
we  should  know  that  this  first  step  in  civilization  was  the  hardest 
step.  But  when  we  come  to  history  as  it  is,  w^e  are  more  struck 
with  the  difficulty  of  the  next  step.  All  the  absolutely  incoherent 
men  —  all  the  "  Cyclopes  "  —  have  been  cleared  away  long  be- 
fore there  was  an  authentic  account  of  them.  And  the  least 
coherent  only  remain  in  the  "  protected  "  parts  of  the  world, 
as  we  may  call  them.  Ordinary  civilization  begins  near  the 
Mediterranean  Sea;  the  best,  doubtless,  of  the  ante-historic 
civilizations  were  not  far  off.  From  this  centre  the  conquering 
swarm  —  for  such  it  is  —  has  grown  and  grown ;  has  widened  its 
subject  territories  steadily,  though  not  equably,  age  by  age. 
But  geography  long  defied  it.  An  Atlantic  Ocean,  a  Pacific  Ocean, 
an  Australian  Ocean,  an  unapproachable  interior  Africa,  an  in- 
accessible and  undesirable  hill  India,  were  beyond  its  range.  In 
such  remote  places  there  was  no  real  competition,  and  on  them  in- 
ferior half-combined  men  continued  to  exist.  But  in  the  regions 
of  rivalry  —  the  regions  where  the  better  man  pressed  upon  the 
worse  man  —  such  half-made  associations  could  not  last.  They 
died  out,  and  history  did  not  begin  till  after  they  were  gone.  The 
great  difficulty  which  history  records  is  not  that  of  the  first  step, 
but  that  of  the  second  step.  What  is  most  evident  is  not  the  diffi- 
culty of  getting  a  fixed  law,  but  getting  out  of  a  fixed  law ;  not  of 


458  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

cementing  (as  upon  a  former  occasion  I  phrased  it)  a  cake  of 
custom,  but  of  breaking  the  cake  of  custom;  not  of  making  the 
first  preservative  habit,  but  of  breaking  through  it,  and  reaching 
something  better. 

This  is  the  precise  case  with  the  whole  family  of  arrested  civ- 
ilizations. A  large  part,  a  very  large  part,  of  the  world  seems  to 
be  ready  to  advance  to  something  good  —  to  have  prepared  all 
the  means  to  advance  to  something  good  —  and  then  to  have 
stopped,  and  not  advanced.  India,  Japan,  China,  almost  every 
sort  of  Oriental  civilization,  though  differing  in  nearly  all  other 
things,  are  in  this  alike.  They  look  as  if  they  had  paused  when 
there  was  no  reason  for  pausing  —  when  a  mere  observer  from 
without  would  say  they  were  likely  not  to  pause. 

The  reason  is,  that  only  those  nations  can  progress  which  pre- 
serve and  use  the  fundamental  peculiarity  which  was  given  by 
nature  to  man's  organism  as  to  all  other  organisms.  By  a  law  of 
which  we  know  no  reason,  but  which  is  among  the  first  by  which 
Providence  guides  and  governs  the  world,  there  is  a  tendency  in 
descendants  to  be  like  their  progenitors,  and  yet  a  tendency  also 
in  descendants  to  differ  from  their  progenitors.  The  work  of 
nature  in  making  generations  is  a  patchwork  —  part  resemblance, 
part  contrast.  In  certain  respects  each  born  generation  is  not 
like  the  last  born ;  and  in  certain  other  respects  it  is  like  the  last. 
But  the  peculiarity  of  arrested  civilization  is  to  kill  out  varieties 
at  birth  almost ;  that  is,  in  early  childhood,  and  before  they  can 
develop.  The  fixed  custom  which  public  opinion  alone  tolerates 
is  imposed  on  all  minds,  whether  it  suits  them  or  not.  In  that  case 
the  community  feel  that  this  custom  is  the  only  shelter  from  bare 
tyranny,  and  the  only  security  for  what  they  value.  Most  Orien- 
tal communities  live  on  land  which  in  theory  is  the  property  of 
a  despotic  sovereign,  and  neither  they  nor  their  families  could  have 
the  elements  of  decent  existence  unless  they  held  the  land  upon 
some  sort  of  fixed  terms.  Land  in  that  state  of  society  is  (for  all 
but  a  petty  skilled  minority)  a  necessary  of  life,  and  all  the  unin- 
creasable  land  being  occupied,  a  man  who  is  turned  out  of  his 
holding  is  turned  out  of  this  world,  and  must  die.  And  our  notion 
of  written  leases  is  as  out  of  place  in  a  world  without  writing  and 
without  reading  as  a  House  of  Commons  among  Andaman  Is- 
landers. Only  one  check,  one  sole  shield  for  life  and  good,  is  then 
possible  —  usage.  And  it  is  but  too  plain  how  in  such  places  and 
periods  men  cling  to  customs  because  customs  alone  stand  between 
them  and  starvation. 


CiL^P.   XVIII.]  THE   USE   OF  CONFLICT  459 

A  still  more  powerful  cause  co-operated,  if  a  cause  more  power- 
ful can  be  imagined.  Drj-den  had  a  dream  of  an  early  age,  "  when 
wild  in  woods  the  noble  savage  ran  " ;  but  "  when  lone  in  woods 
the  cringing  savage  crept  "  would  have  been  more  like  all  we 
know  of  that  early,  bare,  painful  period.  Not  only  had  they  no 
comfort,  no  convenience,  not  the  very  beginnings  of  an  epicurean 
life,  but  their  mind  within  was  as  painful  to  them  as  the  world 
without.  It  was  full  of  fear.  So  far  as  the  vestiges  inform  us, 
they  were  afraid  of  everything;  they  were  afraid  of  animals,  of 
certain  attacks  by  near  tribes,  and  of  possible  inroads  from  far 
tribes.  But,  above  all  things,  they  were  frightened  of  "  the 
world  " ;  the  spectacle  of  nature  filled  them  with  awe  and  dread. 
They  fancied  there  were  powers  behind  it  which  must  be  pleased, 
soothed,  flattered,  and  this  very  often  in  a  number  of  hideous 
ways.  We  have  too  many  such  religions,  even  among  races  of 
great  cultivation.  Men  change  their  religions  more  slowly  than 
they  change  anything  else;  and  accordingly  we  have  religions 
"  of  the  ages  "  —  (it  is  Mr.  Jowett  who  so  calls  them)  —  of  the 
"  ages  before  morality  " ;  of  ages  of  which  the  civil  life,  the  com- 
mon maxims,  and  all  the  secular  thoughts  have  long  been  dead. 
"  Every  reader  of  the  classics  ",  said  Dr.  Johnson,  "  finds  their 
mythology  tedious."  In  that  old  world,  which  is  so  like  our 
modern  world  in  so  many  things,  so  much  more  like  than  many 
far  more  recent,  or  some  that  live  beside  us,  there  is  a  part  in  which 
we  seem  to  have  no  kindred,  which  we  stare  at,  of  which  we  can- 
not think  how  it  could  be  credible,  or  how  it  came  to  be  thought 
of.  This  is  the  archaic  part  of  that  very  world  which  we  look 
at  as  so  ancient ;  an  ''  antiquity  "  which  descended  to  them, 
hardly  altered,  perhaps,  from  times  long  antecedent,  which 
were  as  unintelligible  to  them  as  to  us,  or  more  so.  How  this 
terrible  religion  —  for  such  it  was  in  all  living  detail,  though  we 
make,  and  the  ancients  then  made,  an  artistic  use  of  the  more  at- 
tractive bits  of  it  —  weighed  on  man,  the  great  poem  of  Lucre- 
tius, the  most  of  a  nineteenth-century  poem  of  any  in  antiquity, 
brings  before  us  with  a  feeling  so  vivid  as  to  be  almost  a  feeling  of 
our  own.  Yet  the  classical  religion  is  a  mild  and  tender  specimen 
of  the  preserved  religions.  To  get  at  the  worst,  you  should  look 
where  the  destroying  competition  has  been  least  —  at  America, 
where  sectional  civilization  was  rare,  and  a  pervading  coercive 
civilization  did  not  exist ;  at  such  religions  as  those  of  the  Aztecs. 

At  first  sight  it  seems  impossible  to  imagine  what  conceivable 
function  such  awful  religions  can  perform  in  the  economy  of  the 


460  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

world.  And  no  one  can  fully  explain  them.  But  one  use  they  as- 
suredly had :  they  fixed  the  yoke  of  custom  thoroughly  on  man- 
kind. They  were  the  prime  agents  of  the  era.  They  put  upon  a 
fixed  law  a  sanction  so  fearful  that  no  one  could  dream  of  not  con- 
forming to  it. 

No  one  will  ever  comprehend  the  arrested  civilizations  unless 
he  sees  the  strict  dilemma  of  early  society.  Either  men  had  no 
law  at  all,  and  lived  in  confused  tribes,  hardly  hanging  together, 
or  they  had  to  obtain  a  fixed  law  by  processes  of  incredible  diffi- 
culty. Those  who  surmounted  that  difficulty  soon  destroyed  all 
those  that  lay  in  their  way  who  did  not.  And  then  they  themselves 
were  caught  in  their  own  yoke.  The  customary  discipline,  which 
could  only  be  imposed  on  any  early  men  by  terrible  sanctions, 
continued  with  those  sanctions,  and  killed  out  of  the  whole  society 
the  propensities  to  variation  which  are  the  principle  of  progress. 

Experience  show^s  how  incredibly  difficult  it  is  to  get  men  really 
to  encourage  the  principle  of  originality.  They  will  admit  it  in 
theory,  but  in  practice  the  old  error  —  the  error  which  arrested  a 
hundred  civilizations  —  returns  again.  Men  are  too  fond  of  their 
own  life,  too  credulous  of  the  completeness  of  their  own  ideas,  too 
angry  at  the  pain  of  new  thoughts,  to  be  able  to  bear  easily  with 
a  changing  existence ;  or  else,  having  new  ideas,  they  want  to  en- 
force them  on  mankind  —  to  make  them  heard,  and  admitted, 
and  obeyed  before,  in  simple  competition  with  other  ideas,  they 
would  ever  be  so  naturally.  At  this  very  moment  there  are  the 
most  rigid  Comtists  teaching  that  we  ought  to  be  governed  by  a 
hierarchy  —  a  combination  of  savans  orthodox  in  science.  Yet 
who  can  doubt  that  Comte  would  have  been  hanged  by  his  own 
hierarchy ;  that  his  essor  materiel,  which  was  in  fact  troubled  by 
the  "  theologians  and  metaphysicians  "  of  the  Polytechnic  School, 
would  have  been  more  impeded  by  the  government  he  wanted  to 
make?  And  then  the  secular  Comtists,  Mr.  Harrison  and  Mr. 
Beesly,  who  want  to  "  Frenchify  the  English  institutions  "  — 
that  is,  to  introduce  here  an  imitation  of  the  Napoleonic  system, 
a  dictatorship  founded  on  the  proletariat  —  who  can  doubt  that 
if  both  these  clever  writers  had  been  real  Frenchmen  they  would 
have  been  irascible  anti-Bonapartists,  and  have  been  sent  to 
Cayenne  long  ere  now  ?  The  wish  of  these  writers  is  very  natural. 
They  want  to  "  organize  society",  to  erect  a  despot  who  will  do 
what  they  like,  and  work  out  their  ideas;  but  any  despot  will 
do  what  he  himself  likes,  and  will  root  out  new  ideas  ninety-nine 
times  for  once  that  he  introduces  them. 


Chap.   XVIII.]  THE  USE   OF  CONFLICT  461 

Again,  side  by  side  with  these  Comtists,  and  warring  with  them  — 
at  least  with  one  of  them  —  is  Mr.  Arnold,  w^hose  poems  we  know 
by  heart,  and  who  has,  as  much  as  any  living  Englishman,  the 
genuine  literary  impulse;  and  yet  even  he  wants  to  put  a  yoke 
upon  us  —  and,  worse  than  a  political  yoke,  an  academic  yoke, 
a  yoke  upon  our  minds  and  our  styles.  He,  too,  asks  us  to  imitate 
France;  and  what  else  can  we  say  than  what  the  two  most 
thorough  Frenchmen  of  the  last  age  did  say  ?  —  "  Dans  les  corps 
a  talent,  nulle  distinction  ne  fait  ombrage,  si  ce  n'est  pas  celle 
du  talent.  Un  due  et  pair  honore  I'Academie  Fran^aise,  qui  ne 
veut  point  de  Boileau.  refuse  la  Bruyere,  fait  attendre  Voltaire, 
mais  revolt  tout  d'abord  Chapelain  et  Conrart.  De  meme  nous 
voyons  a  I'Academie  Grecque  le  vicomte  invite,  Corai  repousse, 
lorsque  Jormard  y  entre  comme  dans  un  moulin."  Thus  speaks 
Paul-Louis  Courier  in  his  own  brief  inimitable  prose.  And  a  still 
greater  writer  —  a  real  Frenchman,  if  ever  there  was  one,  and 
(what  many  critics  would  have  denied  to  be  possible)  a  great  poet 
by  reason  of  his  most  French  characteristics  —  Beranger,  tells  us 
in  verse.  .  .  .  Asylums  of  commonplace,  he  hints,  academies  must 
ever  be. 

But  that  sentence  is  too  harsh ;  the  true  one  is  —  the  academies 
are  asylums  of  the  ideas  and  the  tastes  of  the  last  age.  "  By  the 
time  ",  I  have  heard  a  most  eminent  man  of  science  observe,  "  by 
the  time  a  man  of  science  attains  eminence  on  any  subject  he  be- 
comes a  nuisance  upon  it,  because  he  is  sure  to  retain  errors  which 
w^ere  in  vogue  when  he  was  young,  but  which  the  new  race  have 
refuted."  These  are  the  sort  of  ideas  which  find  their  home  in 
academies,  and  out  of  their  dignified  windows  pooh-pooh  new 
things. 

I  may  seem  to  have  wandered  far  from  early  society,  but  I 
have  not  wandered.  The  true  scientific  method  is  to  explain  the 
past  by  the  present  —  what  we  see  by  what  we  do  not  see.  We 
can  only  comprehend  why  so  many  nations  have  not  varied,  when 
we  see  how  hateful  variation  is ;  how  everybody  turns  against  it ; 
how  not  only  the  conservatives  of  speculation  try  to  root  it  out, 
but  the  very  innovators  invent  most  rigid  machines  for  crushing 
the  "  monstrosities  and  anomalies  "  —  the  new  forms,  out  of  which, 
by  competition  and  trial,  the  best  is  to  be  selected  for  the  future. 
The  point  I  am  bringing  out  is  simple :  one  most  important  pre- 
requisite of  a  prevailing  nation  is  that  it  should  have  passed  out 
of  the  first  stage  of  civilization  into  the  second  stage  —  out  of  the 
stage  where  permanence  is  most  wanted  into  that  where  varia- 


462  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

bility  is  most  wanted ;  and  you  cannot  comprehend  why  progress 
is  so  slow  till  you  see  how  hard  the  most  obstinate  tendencies  of 
human  nature  make  that  step  to  mankind. 

Of  course  the  nation  we  are  supposing  must  keep  the  virtues  of 
its  first  stage  as  it  passes  into  the  after  stage,  else  it  will  be  trodden 
out ;  it  will  have  lo'st  the  savage  virtues  in  getting  the  beginning 
of  the  civilized  virtues ;  and  the  savage  virtues  which  tend  to  war 
are  the  daily  bread  of  human  nature.  Carlyle  said,  in  his  graphic 
way,  "  The  ultimate  question  between  every  two  human  beings  is, 
'  Can  I  kill  thee,  or  canst  thou  kill  me?  '  "  History  is  strewn 
with  the  wrecks  of  nations  which  have  gained  a  little  progressive- 
ness  at  the  cost  of  a  great  deal  of  hard  manliness,  and  have  thus 
prepared  themselves  for  destruction  as  soon  as  the  movements  of 
the  world  gave  a  chance  for  it.  But  these  nations  have  come  out 
of  the  ''  pre-economic  stage  '*  too  soon ;  they  have  been  put  to 
learn  while  yet  only  too  apt  to  unlearn.  Such  cases  do  not  vitiate, 
they  confirm,  the  principle  —  that  a  nation  which  has  just  gained 
variability  without  losing  legality  has  a  singular  likelihood  to  be 
a  prevalent  nation. 

No  nation  admits  of  an  abstract  definition;  all  nations  are 
beings  of  many  qualities  and  many  sides ;  no  historical  event  ex- 
actly illustrates  any  one  principle ;  every  cause  is  intertwined  and 
surrounded  with  a  hundred  others.  The  best  history  is  but  like 
the  art  of  Rembrandt;  it  casts  a  vivid  light  on  certain  selected 
causes,  on  those  which  were  best  and  greatest;  it  leaves  all  the 
rest  in  shadow  and  unseen.  To  make  a  single  nation  illustrate  a 
principle,  you  must  exaggerate  much  and  you  must  omit  much. 
But,  not  forgetting  this  caution,  did  not  Rome  —  the  prevalent 
nation  in  the  ancient  world  —  gain  her  predominance  by  the  prin- 
ciple on  which  I  have  dwelt?  In  the  thick  crust  of  her  legality 
there  was  hidden  a  little  seed  of  adaptiveness.  Even  in  her  law 
itself  no  one  can  fail  to  see  that,  binding  as  was  the  habit  of  obe- 
dience, coercive  as  use  and  wont  at  first  seem,  a  hidden  impulse 
of  extrication  did  manage,  in  some  queer  way,  to  change  the  sub- 
stance while  conforming  to  the  accidents  —  to  do  what  was  wanted 
for  the  new  time  while  seeming  to  do  only  what  was  directed  by 
the  old  time.  And  the  moral  of  their  whole  history  is  the  same : 
each  Roman  generation,  so  far  as  we  know,  differs  a  little  —  and 
in  the  best  times  often  but  a  very  little  —  from  its  predecessors. 
And  therefore  the  history  is  so  continuous  as  it  goes,  though  its 
two  ends  are  so  unlike.  The  history  of  many  nations  is  like  the 
stage  of  the  English  drama :   one  scene  is  succeeded  on  a  sudden 


Ch.\p.   XVIII.]  THE   USE   OF  CONFLICT  463 

by  a  scene  quite  different  —  a  cottage  by  a  palace,  and  a  wind- 
mill by  a  fortress.  But  the  history  of  Rome  changes  as  a  good 
diorama  changes ;  while  you  look,  you  hardly  see  it  alter ;  each 
moment  is  hardly  different  from  the  last  moment ;  yet  at  the  close 
the  metamorphosis  is  complete,  and  scarcely  anything  is  as  it 
began.  Just  so  in  the  history  of  the  great  prevailing  city;  you 
begin  with  a  town  and  you  end  with  an  empire,  and  this  by  un- 
marked stages.  So  shrouded,  so  shielded,  in  the  coarse  fibre  of 
other  qualities  was  the  delicate  principle  of  progress,  that  it  never 
failed,  and  it  was  never  broken. 

One  standing  instance,  no  doubt,  shows  that  the  union  of  pro- 
gressiveness  and  legality  does  not  secure  supremacy  in  war.  The 
Jewish  nation  has  its  type  of  progress  in  the  prophets,  side  by  side 
with  its  type  of  permanence  in  the  law  and  Levites,  more  distinct 
than  any  other  ancient  people.  Nowhere  in  common  history  do 
we  see  the  two  forces  —  both  so  necessary  and  both  so  dangerous  — 
so  apart  and  so  intense :  Judsea  changed  in  inward  thought,  just 
as  Rome  changed  in  exterior  power.  Each  change  was  continu- 
ous, gradual,  and  good.  In  early  times  every  sort  of  advantage 
tends  to  become  a  military  advantage ;  such  is  the  best  way,  then, 
to  keep  it  alive.  But  the  Jewish  advantage  never  did  so;  be- 
ginning in  religion,  contrary  to  a  thousand  analogies,  it  remained 
religious.  For  that  we  care  for  them ;  from  that  have  issued  end- 
less consequences.  But  I  cannot  deal  with  such  matters  here, 
nor  are  they  to  my  purpose.  As  respects  this  essay,  Judaea  is  an 
example  of  combined  variability  and  legality  not  investing  itself 
in  warlike  power,  and  so  perishing  at  last,  but  bequeathing  never- 
theless a  legacy  of  the  combination  in  imperishable  mental  effects. 

It  may  be  objected  that  this  principle  is  like  saying  that  men 
walk  when  they  do  walk,  and  sit  when  they  do  sit.  The  problem 
is,  why  do  men  progress?  And  the  answer  suggested  seems  to 
be,  that  they  progress  when  they  have  a  certain  sufficient  amount 
of  variability  in  their  nature.  This  seems  to  be  the  old  style  of 
explanation  by  occult  qualities.  It  seems  like  saying  that  opium 
sends  men  to  sleep  because  it  has  a  soporific  virtue,  and  bread 
feeds  because  it  has  an  alimentary  quality.  But  the  explanation 
is  not  so  absurd.  It  says :  **  The  beginning  of  civilization  is 
marked  by  an  intense  legality ;  that  legality  is  the  very  condi- 
tion of  its  existence,  the  bond  which  ties  it  together ;  but  that 
legality  —  that  tendency  to  impose  a  settled  customary  yoke 
upon  all  men  and  all  actions  —  if  it  goes  on,  kills  out  the  varia- 
bility implanted  by  nature,  and  makes  different  men  and  dif- 


464  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

ferent  ages  facsimiles  of  other  men  and  other  ages,  as  we  see  them 
SO  often.  Progress  is  only  possible  in  those  happy  cases  where  the 
force  of  legality  has  gone  far  enough  to  bind  the  nation  together, 
but  not  far  enough  to  kill  out  all  varieties  and  destroy  nature's 
perpetual  tendency  to  change."  The  point  of  the  solution  is  not 
the  invention  of  an  imaginary  agency,  but  an  assignment  of  com- 
parative magnitude  to  two  known  agencies. 

§  3.  Causes  and  Conditions  of  Superiority  among  Nations. 
This  advantage  is  one  of  the  greatest  in  early  civilization  —  one 
of  the  facts  which  give  a  decisive  turn  to  the  battle  of  nations; 
but  there  are  many  others.  A  little  perfection  in  political  insti- 
tutions may  do  it.  Travellers  have  noticed  that  among  savage 
tribes  those  seemed  to  answer  best  in  which  the  monarchical  power 
was  most  predominant,  and  those  worst  in  which  the  ''  rule  of 
many  "  was  in  its  vigor.  So  long  as  war  is  the  main  business  of 
nations,  temporary  despotism  —  despotism  during  the  cam- 
paign —  is  indispensable.  Macaulay  justly  said  that  many  an 
army  has  prospered  under  a  bad  commander,  but  no  army  has 
ever  prospered  under  a  ''  debating  society  " ;  that  many-headed 
monster  is  then  fatal.  Depotism  grows  in  the  first  societies, 
just  as  democracy  grows  in  more  modern  societies ;  it  is  the  govern- 
ment answering  the  primary  need,  and  congenial  to  the  whole 
spirit  of  the  time.  But  despotism  is  unfavorable  to  the  principle 
of  variability,  as  all  history  shows.  It  tends  to  keep  men  in  the 
customary  stage  of  civilization ;  its  very  fitness  for  that  age  un- 
fits it  for  the  next.  It  prevents  men  from  passing  into  the  first 
age  of  progress  —  the  very  slow  and  very  gradually  improving 
age.  Some  "  standing  system  "  of  semi-free  discussion  is  as 
necessary  to  break  the  thick  crust  of  custom  and  begin  progress 
as  it  is  in  later  ages  to  carry  on  progress  when  begun;  probably 
it  is  even  more  necessary.  And  in  the  most  progressive  races  we 
find  it.  I  have  spoken  already  of  the  Jewish  prophets,  the  life 
of  that  nation,  and  the  principle  of  all  its  growth.  But  a  still 
more  progressive  race  —  that  by  which  secular  civilization  was 
once  created,  by  which  it  is  now  mainly  administered  —  had  a 
still  better  instrument  of  progression.  ''  In  the  very  earliest 
glimpses  ",  says  Mr.  Freeman,  "  of  Teutonic  political  life,  we  find 
the  monarchic,  the  aristocratic,  and  the  democratic  elements 
already  clearly  marked.  There  are  leaders  with  or  without  the 
royal  title;  there  are  men  of  noble  birth,  whose  noble  birth  (in 
whatever  the  original  nobility  may  have  consisted)  entitles  them 
to  a  pre-eminence  in  every  way ;  but  beyond  these  there  is  a  free 


Chap.   XVIII.]  THE   USE   OF   CONFLICT  465 

and  armed  people,  in  whom  it  is  clear  that  the  ultimate  sover- 
eignty resides.  Small  matters  are  decided  by  the  chiefs  alone ; 
great  matters  are  submitted  by  the  chiefs  to  the  assembled  nation. 
Such  a  system  is  far  more  than  Teutonic ;  it  is  a  common  Aryan 
possession  ;  it  is  the  constitution  of  the  Homeric  Achaians  on  earth 
and  of  the  Homeric  gods  on  Olympus."  Perhaps,  and  indeed 
probably,  this  constitution  may  be  that  of  the  primitive  tribe 
which  Romans  left  to  go  one  way,  and  Greeks  to  go  another, 
and  Teutons  to  go  a  third.  The  tribe  took  it  with  them,  as  the 
English  take  the  common  law  with  them,  because  it  was  the  one 
kind  of  polity  which  they  could  conceive  and  act  upon  ;  or  it  may 
be  that  the  emigrants  from  the  primitive  Aryan  stock  only  took 
with  them  a  good  aptitude  —  an  excellent  political  nature,  which 
similar  circumstances  in  distant  countries  were  afterward  to 
develop  into  like  forms.  But  anyhow  it  is  impossible  not  to  trace 
the  supremacy  of  Teutons,  Greeks,  and  Romans  in  part  to  their 
common  form  of  government.  The  contests  of  the  assembly 
cherished  the  principle  of  change ;  the  influence  of  the  elders 
insured  sedateness  and  preserved  the  mould  of  thought ;  and, 
in  the  best  cases,  military  discipline  was  not  impaired  by  free- 
dom though  military  intelligence  was  enhanced  with  the  general 
intelligence.  A  Roman  army  was  a  free  body,  at  its  own  choice 
governed  by  a  peremptory  despotism. 

The  mixture  of  races  was  often  an  advantage,  too.  Much  as 
the  old  world  believed  in  pure  blood,  it  had  very  little  of  it.  Most 
historic  nations  conquered  pre-historic  nations,  and  though  they 
massacred  many,  they  did  not  massacre  all.  They  enslaved  the 
subject  men,  and  they  married  the  subject  women.  No  doubt 
the  whole  bond  of  early  society  was  the  bond  of  descent;  no 
doubt  it  was  essential  to  the  notions  of  a  new  nation  that  it  should 
have  had  common  ancestors ;  the  modern  idea  that  vicinity  of 
habitation  is  the  natural  cement  of  civil  union  would  have  been 
repelled  as  an  impiety  if  it  could  have  been  conceived  as  an  idea. 
But  by  one  of  those  legal  fictions  which  Sir  Henry  Maine  de- 
scribes so  well,  primitive  nations  contrived  to  do  what  they  found 
convenient,  as  well  as  to  adhere  to  what  they  fancied  to  be  right. 
When  they  did  not  beget  they  adopted;  they  solemnly  made  be- 
lieve that  new  persons  were  descended  from  the  old  stock,  though 
everybody  knew  that  in  flesh  and  blood  they  were  not.  They 
made  an  artificial  unity  in  default  of  a  real  unity ;  and  what  it 
is  not  easy  to  understand  now,  the  sacred  sentiment  requiring 
unity  of  race  was  somehow  satisfied ;  what  was  made  did  as  well 


466  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

as  what  was  born.  Nations  with  these  sort  of  maxims  are  not 
likely  to  have  unity  of  race  in  the  modern  sense,  and  as  a  phys- 
iologist understands  it.  What  sorts  of  unions  improve  the  breed, 
and  which  are  worse  than  both  the  father-race  and  the  mother, 
it  is  not  very  easy  to  say.  The  subject  was  reviewed  by  M. 
Quatrefages  in  an  elaborate  report  upon  the  occasion  of  the 
French  Exhibition,  of  all  things  in  the  world.  M.  Quatrefages 
quotes  from  another  writer  the  phrase  that  America  is  a  great 
laboratory  of  experiments  in  the  mixture  of  races,  and  reviews 
the  different  results  which  different  cases  have  shown.  In  South 
Carolina  the  Mulatto  race  is  not  very  prolific,  whereas  in  Louisi- 
ana and  Florida  it  decidedly  is  so.  In  Jamaica  and  in  Java 
the  Mulatto  cannot  reproduce  itself  after  the  third  generation; 
but  on  the  continent  of  America,  as  everybody  knows,  the  mixed 
race  is  now  most  numerous,  and  spreads  generation  after  genera- 
tion without  impediment.  Equally  various  likewise  in  various 
cases  has  been  the  fate  of  the  mixed  race  between  the  white  man 
and  the  native  American;  sometimes  it  prospers,  sometimes  it 
fails.  And  M.  Quatrefages  concludes  his  description  thus:  ''En 
acceptant  comme  vraies  toutes  les  observations  qui  tendent  a 
faire  admettre  qu'il  en  sera  autrement  dans  les  localites  dont  j'ai 
parle  plus  haut,  quelle  est  la  conclusion  a  tirer  de  faits  aussi  peu 
semblables?  Evidemment,  on  est  oblige  de  reconnaitre  que  le 
developpement  de  la  race  mulatre  est  favorise,  retarde,  ou  empeche 
par  des  circonstances  locales;  en  d'autres  termes,  qu'il  depend 
des  influences  exercees  par  I'ensemble  des  conditions  d'existence, 
par  le  milieu."  By  which  I  understand  him  to  mean  that  the 
mixture  of  race  sometimes  brings  out  a  form  of  character  better 
suited  than  either  parent  form  to  the  place  and  time ;  that  in  such 
cases,  by  a  kind  of  natural  selection,  it  dominates  over  both  parents 
and  perhaps  supplants  both,  whereas  in  other  cases  the  mixed 
race  is  not  as  good  then  and  there  as  other  parent  forms,  and 
then  it  passes  away  soon  and  of  itself. 

Early  in  history  the  continual  mixtures  by  conquest  were  just 
so  many  experiments  in  mixing  races  as  are  going  on  in  America 
now.  New  races  wandered  into  new  districts,  and  half  killed, 
half  mixed  with  the  old  races.  And  the  result  was  doubtless  as 
various  and  as  difficult  to  account  for  then  as  now ;  sometimes  the 
crossing  answered,  sometimes  it  failed.  But  when  the  mixture 
was  at  its  best,  it  must  have  excelled  both  parents  in  that  of  which 
so  much  has  been  said  —  that  is,  variability,  and  consequently 
progressiveness.     There  is  more  life  in  mixed  nations.     France, 


Chap.   XVIII.]  THE   USE   OF   CONFLICT  467 

for  instance,  is  justly  said  to  be  the  mean  term  between  the  Latin 
and  the  German  races.  A  Norman,  as  you  may  see  by  looking  at 
him,  is  of  the  north ;  a  Provencal  is  of  the  south,  of  all  that  there 
is  most  southern.  You  have  in  France  Latin,  Celtic,  German, 
compounded  in  an  infinite  number  of  proportions :  one  as  she  is 
in  feeling,  she  is  various  not  only  in  the  past  history  of  her  various 
provinces,  but  in  their  present  temperaments.  Like  the  Irish 
element  and  the  Scotch  element  in  the  English  House  of  Commons, 
the  variety  of  French  races  contributes  to  the  play  of  the  polity ; 
it  gives  a  chance  for  fitting  new  things  which  otherwise  there  w^ould 
not  be.  And  early  races  must  have  wanted  mixing  more  than 
modern  races.  It  is  said,  in  answer  to  the  Jewish  boast  that 
"  their  race  still  prospers,  though  it  is  scattered  and  breeds  in-and- 
in  ",  "  You  prosper  because  you  are  so  scattered ;  by  acclimatiza- 
tion in  various  regions  your  nation  has  acquired  singular  elements 
of  variety;  it  contains  within  itself  the  principle  of  variability 
which  other  nations  must  seek  by  intermarriage."  In  the  be- 
ginning of  things  there  was  certainly  no  cosmopolitan  race  like 
the  Jews ;  each  race  was  a  sort  of  "  parish  race",  narrow  in  thought 
and  abounded  in  range,  and  it  wanted  mixing  accordingly. 

But  the  mixture  of  races  has  a  singular  danger  as  well  as  a  sin- 
gular advantage  in  the  early  world.  We  know  now  the  Anglo- 
Indian  suspicion  or  contempt  for  "  half-castes."  The  union  of 
the  Englishman  and  the  Hindoo  produces  something  not  only 
between  races,  but  between  moralities.  They  have  no  inherited 
creed  or  plain  place  in  the  world ;  they  have  none  of  the  fixed 
traditional  sentiments  which  are  the  stays  of  human  nature.  In 
the  early  world  many  mixtures  must  have  wrought  many  ruins ; 
they  must  have  destroyed  what  they  could  not  replace  —  an  in- 
bred principle  of  discipline  and  of  order.  But  if  these  unions  of 
races  did  not  work  thus ;  if,  for  example,  the  two  races  were  so 
near  akin  that  their  morals  united  as  well  as  their  breeds,  if  one 
race  by  its  great  numbers  and  prepotent  organization  so  presided 
over  the  other  as  to  take  it  up  and  assimilate  it,  and  leave  no 
separate  remains  of  it,  then  the  admixture  w^as  invaluable.  It 
added  to  the  probability  of  variability,  and  therefore  of  improve- 
ment; and  if  that  improvement  even  in  part  took  the  military 
line,  it  might  give  the  mixed  and  ameliorated  state  a  steady  ad- 
vantage in  the  battle  of  nations,  and  a  greater  chance  of  lasting 
in  the  world. 

Another  mode  in  which  one  state  acquires  a  superiority  over 
competing  states  is  by  provisional  institutions,  if  I  may  so  call 


468  FACTORS   OF   LEGAL   EVOLUTION  [Part   II. 

them.  The  most  important  of  these  —  slavery  —  arises  out 
of  the  same  early  conquest  as  the  mixture  of  races.  A  slave 
is  an  unassimilated,  an  undigested  atom;  something  which 
is  in  the  body  politic,  but  yet  is  hardly  part  of  it.  Slavery,  too, 
has  a  bad  name  in  the  later  world,  and  very  justly.  We  connect 
it  with  gangs  in  chains,  with  laws  which  keep  men  ignorant, 
with  laws  that  hinder  families.  But  the  evils  which  we  have 
endured  from  slavery  in  recent  ages  must  not  blind  us  to,  or  make 
us  forget,  the  great  services  that  slavery  rendered  in  early  ages. 
There  is  a  wonderful  presumption  in  its  favor;  it  is  one  of  the 
institutions  which,  at  a  certain  stage  of  growth,  all  nations  in  all 
countries  choose  and  cleave  to.  *'  Slavery  '\  says  Aristotle, 
"  exists  by  the  law  of  nature  ",  meaning  that  it  was  everywhere 
to  be  found  —  was  a  rudimentary  universal  point  of  polity. 
"  There  are  very  many  English  colonies  ",  said  Edward  Gibbon 
Wakefield,  as  late  as  1848,  ''  who  would  keep  slaves  at  once  if  we 
would  let  them  ",  and  he  was  speaking  not  only  of  old  colonies 
trained  in  slavery,  and  raised  upon  the  products  of  it,  but  likewise 
of  new  colonies  started  by  freemen,  and  which  ought,  one  would 
think,  to  wish  to  contain  freemen  only.  But  Wakefield  knew 
what  he  was  saying ;  he  was  a  careful  observer  of  rough  societies, 
and  he  had  watched  the  minds  of  men  in  them.  He  had  seen 
that  leisure  is  the  great  need  of  early  societies  and  slaves  only  can 
give  men  leisure.  All  freemen  in  new  countries  must  be  pretty 
equal ;  every  one  has  labor,  and  every  one  has  land ;  capital, 
at  least  in  agricultural  countries  (for  pastoral  countries  are  very 
different),  is  of  little  use;  it  cannot  hire  labor;  the  laborers  go 
and  work  for  themselves.  There  is  a  story  often  told  of  a  great 
English  capitalist  who  went  out  to  Australia  with  a  shipload  of 
laborers  and  a  carriage;  his  plan  was  that  the  laborers  should 
build  a  house  for  him,  and  that  he  would  keep  his  carriage,  just 
as  in  England.  But  (so  the  story  goes)  he  had  to  try  to  live  in 
his  carriage,  for  his  laborers  left  him,  and  went  away  to  work  for 
themselves. 

In  such  countries  there  can  be  few  gentlemen  and  no  ladies. 
Refinement  is  only  possible  when  leisure  is  possible ;  and  slavery 
first  makes  it  possible.  It  creates  a  set  of  persons  born  to  work 
that  others  may  not  work,  and  not  to  think  in  order  that  others 
may  think.  The  sort  of  originality  which  slavery  gives  is  of  the 
first  practical  advantage  in  early  communities ;  and  the  repose  it 
gives  is  a  great  artistic  advantage  when  they  come  to  be  described 
in  history.     The  patriarchs  Abraham,  Isaac,  and  Jacob  could  not 


Chap.  XVIII.]  THE  USE   OF  CONFLICT  469 

have  had  the  steady  calm  which  marks  them  if  they  had  them- 
selves been  teased  and  hurried  about  their  flocks  and  herds. 
Refinement  of  feeling  and  repose  of  appearance  have  indeed  no 
market  value  in  the  early  bidding  of  nations ;  they  do  not  tend  to 
secure  themselves  a  long  future  or  any  future.  But  originality 
in  war  does,  and  slave-owning  nations,  having  time  to  think,  are 
likely  to  be  more  shrewd  in  policy  and  more  crafty  in  strategy. 

No  doubt  this  momentary  gain  is  bought  at  a  ruinous  after- 
cost.  When  other  sources  of  leisure  become  possible,  the  one  use 
of  slavery  is  past.  But  all  its  evils  remain,  and  even  grow  worse. 
"  Retail  "  slavery  —  the  slavery  in  which  a  master  owns  a  few 
slaves,  whom  he  well  knows  and  daily  sees  —  is  not  at  all  an  in- 
tolerable state ;  the  slaves  of  Abraham  had  no  doubt  a  fair  life, 
as  things  went  in  that  day.  But  wholesale  slavery,  where  men  are 
but  one  of  the  investments  of  large  capital,  and  where  a  great 
owner,  so  far  from  knowing  each  slave,  can  hardly  tell  how  many 
gangs  of  them  he  works,  is  an  abominable  state.  This  is  the 
slavery  which  has  made  the  name  revolting  to  the  best  minds, 
and  has  nearly  rooted  the  thing  out  of  the  best  of  the  world. 
There  is  no  out-of-the-way  marvel  in  this.  The  whole  history  of 
civilization  is  strewn  with  creeds  and  institutions  which  were 
invaluable  at  first,  and  deadly  afterward.  Progress  would  not 
have  been  the  rarity  it  is  if  the  early  food  had  not  been  the  late 
poison.  A  full  examination  of  these  provisional  institutions  would 
need  half  a  volume,  and  would  be  out  of  place  and  useless  here. 
Venerable  oligarchy,  august  monarchy,  are  two  that  would  alone 
need  large  chapters.  But  the  sole  point  here  necessary  is  to  say 
that  such  preliminary  forms  and  feelings  at  first  often  bring  many 
graces  and  many  refinements,  and  often  tend  to  secure  them  by  the 
preservative  military  virtue. 

There  are  cases  in  which  some  step  in  intellectual  progress  gives 
an  early  society  some  gain  in  war ;  more  obvious  cases  are  when 
some  kind  of  moral  quality  gives  some  such  gain.  War  both  needs 
and  generates  certain  virtues ;  not  the  highest,  but  what  may  be 
called  the  preliminary  virtues,  as  valor,  veracity,  the  spirit  of  obe- 
dience, the  habit  of  discipline.  Any  of  these,  and  of  others  like 
them,  when  possessed  by  a  nation,  and  no  matter  how  generated, 
will  give  them  a  military  advantage,  and  make  them  more  likely 
to  stay  in  the  race  of  nations.  The  Romans  probably  had  as  much 
of  these  efficacious  virtues  as  any  race  of  the  ancient  world  —  per- 
haps as  much  as  any  race  in  the  modern  world  too.  And  the  suc- 
cess of  the  nations  which  possess  these  martial  virtues  has  been 


470  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

the  great  means  by  which  their  continuance  has  been  secured  in 
the  world,  and  the  destruction  of  the  opposite  vices  insured  also. 
Conquest  is  the  missionary  of  valor,  and  the  hard  impact  of  military 
virtues  beats  meanness  out  of  the  world. 

In  the  last  century  it  would  have  sounded  strange  to  speak, 
as  I  am  going  to  speak,  of  the  military  advantage  of  religion. 
Such  an  idea  would  have  been  opposed  to  ruling  prejudices,  and 
would  hardly  have  escaped  philosophical  ridicule.  But  the  notion 
is  but  a  commonplace  in  our  day,  for  a  man  of  genius  has  made  it 
his  own.  Mr.  Carlyle's  books  are  deformed  by  phrases  like  ''  in- 
finities "  and  "  verities  ",  and  altogether  are  full  of  faults,  which 
attract  the  very  young,  and  deter  all  that  are  older.  In  spite  of 
his  great  genius,  after  a  long  life  of  writing,  it  is  a  question  still 
whether  even  a  single  work  of  his  can  take  a  lasting  place  in  high 
literature.  There  is  a  want  of  sanity  in  their  manner  which  throws 
a  suspicion  on  their  substance  (though  it  is  often  profound)  ;  and 
he  brandishes  one  or  two  fallacies,  of  which  he  has  himself  a  high 
notion,  but  which  plain  people  will  always  detect  and  deride. 
But  whatever  may  be  the  fate  of  his  fame,  Mr.  Carlyle  has  taught 
the  present  generation  many  lessons,  and  one  of  these  is  that 
"  God-fearing "  armies  are  the  best  armies.  Before  his  time 
people  laughed  at  Cromwell's  saying,  ''  Trust  in  God,  and  keep 
your  powder  dry."  But  we  now  know  that  the  trust  was  of  as 
much  use  as  the  powder,  if  not  of  more.  That  high  concentra- 
tion of  steady  feeling  makes  men  dare  everything  and  do  anything. 

This  subject  would  run  to  an  infinite  extent  if  any  one  were 
competent  to  handle  it.  Those  kinds  of  morals  and  that  kind  of 
religion  which  tend  to  make  the  firmest  and  most  effectual  char- 
acter are  sure  to  prevail,  all  else  being  the  same ;  and  creeds  or 
systems  that  conduce  to  a  soft  limp  mind  tend  to  perish,  except 
some  hard  extrinsic  force  keep  them  alive.  Thus  Epicureanism 
never  prospered  at  Rome,  but  Stoicism  did;  the  stiff,  serious 
character  of  the  great  prevailing  nation  was  attracted  by  what 
seemed  a  confirming  creed,  and  deterred  by  what  looked  like  a 
relaxing  creed.  The  inspiriting  doctrines  fell  upon  the  ardent 
character,  and  so  confirmed  its  energy.  Strong  beliefs  win  strong 
men,  and  then  make  them  stronger.  Such  is  no  doubt  one  cause 
why  Monotheism  tends  to  prevail  over  Polytheism ;  it  produces 
a  higher,  steadier  character,  calmed  and  concentrated  by  a  great 
single  object ;  it  is  not  confused  by  competing  rites,  or  distracted 
by  miscellaneous  deities.  Polytheism  is  religion  in  commission^ 
and  it  is  weak  accordingly.     But  it  will  be  said  the  Jews,  who  were 


Chap.  XVIIIJ  THE   USE   OF  CONFUCT  471 

monotheist,  were  conquered  by  the  Romans,  who  were  polytheist. 
Yes,  it  must  be  answered,  because  the  Romans  had  other  gifts ; 
they  had  a  capacity  for  politics,  a  habit  of  discipline,  and  of  these 
the  Jews  had  not  the  least.  The  religious  advantage  was  an 
advantage,  but  it  was  counterweighed. 

No  one  should  be  surprised  at  the  prominence  given  to  war. 
We  are  dealing  with  early  ages ;  nsition-maJcing  is  the  occupation 
of  man  in  these  ages,  and  it  is  war  that  makes  nations.  Nation- 
changing  comes  afterward,  and  is  mostly  effected  by  peaceful 
revolution,  though  even  then  war,  too,  plays  its  part.  The  idea 
of  an  indestructible  nation  is  a  modern  idea ;  in  early  ages  all 
nations  were  destructible,  and  the  farther  we  go  back  the  more 
incessant  was  the  work  of  destruction.  The  internal  decoration 
of  nations  is  a  sort  of  secondary  process,  which  succeeds  w^hen 
the  main  forces  that  create  nations  have  principally  done  their 
work.  We  have  here  been  concerned  with  the  political  scaffold- 
ing. The  nicer  play  of  finer  forces  may  then  require  more  pleasing 
thoughts  than  the  fierce  fights  of  .early  ages  can  ever  suggest.  It 
belongs  to  the  idea  of  progress  that  beginnings  can  never  seem  at- 
tractive to  those  who  live  far  on;  the  price  of  improvement  is, 
that  the  unimproved  will  always  look  degraded. 

But  how  far  are  the  strongest  nations  really  the  best  nations? 
how  far  is  excellence  in  war  a  criterion  of  other  excellence?  I 
cannot  answer  this  now  fully,  but  three  or  four  considerations  are 
very  plain.  War,  as  I  have  said,  nourishes  the  "  preliminary  " 
virtues,  and  this  is  almost  as  much  as  to  say  that  there  are  virtues 
which  it  does  not  nourish.  All  which  may  be  called  "  grace  " 
as  well  as  virtue  it  does  not  nourish;  humanity,  charity,  a  nice 
sense  of  the  rights  of  others,  it  certainly  does  not  foster.  The 
insensibility  to  human  suffering,  which  is  so  striking  a  fact  in  the 
world  as  it  stood  when  history  first  reveals  it,  is  doubtless  due  to 
the  warlike  origin  of  the  old  civilization.  Bred  in  war  and  nursed 
in  war,  it  could  not  revolt  from  the  things  of  war,  and  one  of  the 
principal  of  these  is  human  pain.  Since  war  has  ceased  to  be  the 
moving  force  in  the  world,  men  have  become  more  tender  one  to 
another,  and  shrink  from  what  they  used  to  inflict  without  caring  ; 
and  this  not  so  much  because  men  are  improved  (which  may  or 
may  not  be  in  various  cases),  but  because  they  have  no  longer 
the  daily  habit  of  war  —  have  no  longer  formed  their  notions  upon 
war,  and  therefore  are  guided  by  thoughts  and  feelings  which 
soldiers  as  such  —  soldiers  educated  simply  by  their  trade  — 
are  too  hard  to  understand. 


472  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

Very  like  this  is  the  contempt  for  physical  weakness  and  for 
women  which  marks  early  society  too.  The  non-combatant 
population  is  sure  to  fare  ill  during  the  ages  of  combat.  But  these 
defects,  too,  are  cured  or  lessened ;  women  have  now  marvelous 
means  of  winning  their  way  in  the  world ;  and  mind  without 
muscle  has  far  greater  force  than  muscle  without  mind.  These 
are  some  of  the  after-changes  in  the  interior  of  nations,  of  which 
the  causes  must  be  scrutinized,  and  I  now  mention  them  only  to 
bring  out  how  many  softer  growths  have  now  half-hidden  the  old 
and  harsh  civilization  which  war  made. 

But  it  is  very  dubious  whether  the  spirit  of  war  does  not  still 
color  our  morality  far  too  much.  Metaphors  from  law  and  meta- 
phors from  war  make  most  of  our  current  moral  phrases,  and  a 
nice  examination  would  easily  explain  that  both  rather  vitiate 
what  both  often  illustrate.  The  military  habit  makes  man  think 
far  too  much  of  definite  action,  and  far  too  little  of  brooding  medi- 
tation. Life  is  not  a  set  campaign,  but  an  irregular  work,  and 
the  main  forces  in  it  are  not  overt  resolutions,  but  latent  and  half- 
involuntary  promptings.  The  mistake  of  military  ethics  is  to 
exaggerate  the  conception  of  discipline,  and  so  to  present  the  moral 
force  of  the  will  in  a  barer  form  than  it  ever  ought  to  take.  Mili- 
tary morals  can  direct  the  axe  to  cut  down  the  tree,  but  it  knows 
nothing  of  the  quiet  force  by  which  the  forest  grows. 

What  has  been  said  is  enough,  I  hope,  to  bring  out  that  there 
are  many  qualities  and  many  institutions  of  the  most  various 
sort  which  give  nations  an  advantage  in  military  competition; 
that  most  of  these  and  most  warlike  qualities  tend  principally  to 
good ;  that  the  constant  winning  of  these  favored  competitors  is 
the  particular  mode  by  which  the  best  qualities  wanted  in  ele- 
mentary civilization  are  propagated  and  preserved. 


Chapter  XIX 
STRUGGLE  AND   ADAPTATION 


§  1.  Imperfection  of  Human  Social 
Adaptation. 

§  2.  Causes  Which  Oppose  Hu- 
man Adaptation. 

§  3.  Circumstances  Which  Favor 
Adaptation. 


§  4.    Origin  and  Evolution  of  Law. 
§  5.    Origin    and   Evolution   of   the 
State. 


§  1.  Imperfection  of  Human  Social  Adaptation.  In  spite  of 
the  notable  progress  achieved  by  the  human  species,  it  must  be 
acknowledged  that  men  are  still  very  imperfectly  adapted  among 
themselves.  Apart  from  the  fact  that  some  peoples  have  scarcely 
emerged  from  barbarism,  and  that  others  are  still  in  a  state  of 
savagery,  or  nearly  so,  it  is  evident  that  wars  and  commercial 
hostilities  still  occur  among  the  most  civilized  nations. 

If  we  pass  from  external  relations  to  internal  conditions,  we  find 
among  the  greater  number  of  human  groups  that  political  and 
juridical  struggles  are  still  very  intense.  It  is  sufficient  to  say 
that  some  peoples  are  in  truth  under  the  domination  of  a  military 
class,  others  under  a  sacerdotal  tyranny,  and  the  remainder  under 
an  aristocratic  or  plutocratic  regime. 

Where  a  democracy  dominates  we  find  a  condition  of  struggle 
more  or  less  violent  between  the  rich  and  the  poor,  between  major- 
ities and  minorities.  After  all  is  said,  it  cannot  be  asserted  that 
the  human  species  after  thousands  and  thousands  of  years  of  effort 
and  of  suffering  has  traveled  far  on  the  road  which  leads  to  its 
well-being  and  happiness. 

When  we  reflect  that  some  of  the  inferior  types  of  life,  such  as 
bees  and  ants,  as  well  as  various  species  of  birds  and  herbivorous 
animals  which  populate  the  primeval  forest,  are  better  adapted 

1  [By  Michel-Angelo  Vaccaro,  director  of  Rivista  Scientifica  del 
Diritto. 

This  translation  by  E.  Soderwall,  of  the  Gary  Library  of  Law  in  North- 
western University,  is  from  the  revised  French  version  translated  from  the 
Italian  by  J.  Gaure  under  the  title,  *'Les  Bases  Sociologiques  du  Droit 
©t  de  L'fitat"  (Bibliothfeque  Sociologique  Internationale,  direction  de  M. 
Rene  Worms),  Paris,  1898,  Giard  &  Bri^re,  pp.  440-456.] 

473 


474  FACTORS  OF  LEGAL  EVOLUTION  [Part  II. 

to  social  life  than  man,  one  is  constrained,  against  his  wish,  to 
question  whether  man  is  justified  in  calling  himself  the  king  of 
the  earth  when  there  are  other  creatures  which  live  together  in 
greater  harmony.  Of  what  use  is  our  superiority,  our  great  in- 
telligence, our  marvelous  inventions  and  discoveries,  if  in  spite 
of  all  this  our  social  adaptation  is  so  imperfect  that  it  makes  us 
more  unfortunate  than  many  inferior  animals? 

But,  instead  of  useless  recrimination,  let  us  see  if,  upon  closer 
examination,  this  phenomenon  is  not  less  terrifying  than  it  appears. 

§  2.  Causes  Which  Oppose  Human  Adaptation.  Man  was  the 
last  to  come  on  the  earth ;  he  has  had,  therefore,  less  time  than 
the  animals  which  preceded  him  to  adapt  himself  to  his  situation. 
Furthermore,  adaptation  among  animals  is  to  a  large  extent 
connected  with  variations  which  have  become  organic,  and  which 
in  consequence  are  transmitted  by  heredity  with  greater  regularity 
than  is  the  case  with  man  whose  life  consists  of  phenomena  which 
are  almost  entirely  non-instinctive.  If  this  were  all,  there  would 
be  reason  to  be  content,  but  a  cruel  fate  has  raised  up  other  causes 
which  prevent  the  human  species  from  attaining  a  satisfactory 
adaptation  among  themselves. 

The  first  and  most  important  of  these  causes  is  an  insufficiency 
of  means  necessary  to  life  which  leads  inevitably  to  struggle  and 
to  elimination  of  a  certain  number  of  individuals.  This  primi- 
tive insufficiency  of  things  useful  to  life  in  human  society  increases 
notably  by  reason  of  foresight  which  degenerates  into  cupidity 
and  counsels  each  one  to  take  not  only  what  is  necessary  for  his 
needs,  as  animals  do,  but,  also,  to  appropriate  as  much  as  possible 
of  the  thing.  This  involves  a  larger  number  of  eliminations  than 
is  required  by  the  ordinary  laws  of  nature. 

If  the  struggle  for  existence  between  men  took  place  under 
equal  conditions,  then  those  less  favored  would,  nevertheless,  be 
quickly  expelled  from  the  banquet  of  life  by  those  better  endowed. 
As  a  result,  after  each  generation,  the  survivors  would  have  be- 
come very  well  adapted  to  their  biological  and  social  environment. 
Unfortunately,  the  struggle  for  life  occurs  under  such  irregular 
conditions  that  it  often  leads  to  triumph  of  the  less  deserving  and  • 
degenerate  members  of  society.  Consequently,  human  adapta- 
tion encounters  new  obstacles  and  remains  inperfect.  The  human 
social  composition  is  much  more  complicated  and  variable  than 
any  other.  It  follows  that  among  men,  adaptation  is  subject  to 
endless  disturbances  which  prevent  its  realization  in  a  normal 
manner. 


Chap.   XIX.]  STRUGGLE  AND   ADAPTATION  475 

This  order  of  things  is  to  be  regretted  the  more  as  mankind 
frequently  passes  from  a  stage  more  favorable  for  life  to  one  less 
favorable,  which  renders  adaptation  more  difficult  and  painful. 
We  know  that  whenever  a  social  group  is  subjugated  by  another 
not  only  the  conditions  of  its  adaptation  change,  which  is  an  evil, 
but,  also,  that  they  become  very  painful  and  very  hard.  The 
victors  who  seek  only  to  exploit  the  vanquished  do  all  that  they 
can  to  force  them  into  an  inferior  kind  of  life.  But  they  succeed 
only  with  difficulty;  because  the  adaptation  which  harmonizes 
with  a  greater  or  less  extent  of  degeneration  is  only  obtained  at 
the  price  of  long  suffering  and  enormous  sacrifices  which  drive  to 
revolt  those  who  are  subjected  to  them.   .   .   . 

§  3.  Circumstances  Which  Favor  Adaptation.  While,  on  one 
hand,  man's  high  intelligence  has  led  him  to  a  great  variety  of 
evil  against  his  fellow  creatures,  it  has,  on  the  other  hand,  enabled 
him  to  overcome  and  to  adapt  to  his  needs  other  species,  and  to 
put  into  opposition  against  each  other  the  forces  of  nature,  in 
such  a  way  as  to  render  him  service  and  to  compel  more  abundant 
production. 

As  wealth  increases,  the  correspondence  between  means  of  sub- 
sistence and  the  population  becomes  closer.  For  proof  of  this, 
it  is  sufficient  to  compare  barbarous  and  civilized  peoples.  Among 
barbarous  tribes  the  number  of  violent  eliminations  (such  as 
abortions,  infanticide,  homicide,  human  sacrifices,  perpetual 
wars,  etc.)  is  not  only  greater  than  among  civilized  peoples,  but 
life  itself  is  shorter  and  less  secure  on  account  of  hardships,  fre- 
quent poverty,  and  epidemic  diseases.  .   .  . 

In  discussing  the  special  features  of  human  adaptation,  we  have 
noticed  among  animals  that  adaptation  is  effected  characteristi- 
cally by  a  process  of  organic  and  psychic  modification  which  does 
not  extend  beyond  the  individual;  while  among  human  beings, 
on  the  contrary,  there  is  besides  this  organic  process,  an  artificial 
and  incorporeal  process  of  modifications  impressed  upon  external 
nature,  together  with  appliances  and  instruments  separated  from 
the  body,  which  have  the  advantage  of  giving  the  individual  greater 
power  of  resistance  against  his  enemies. 

W^e  have  seen,  also,  that  the  process  of  selection  among  animals 
has  the  aim  of  preserving  and  accumulating  organic  modifications 
favorable  for  their  survival.  Among  human  beings,  while  selec- 
tion produces  the  same  result,  it  also  tends  to  accumulation  of 
all  the  inventions  and  discoveries  which  improve  the  instruments 
and  other  artificial  agencies  which  are  possessed. 


476  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

Organic  modifications  demand  a  long  time  to  become  fixed  and 
to  become  hereditary;  and  they  accumulate  more  slowly  than 
those  which  man  learns  to  impress  on  material  things,  in  the  way 
of  artificial  instruments  and  machines.  It  results,  therefore, 
that  human  adaptation  is  more  extensive  and  more  rapid  than 
adaptation  among  animals. 

It  is  true  that  a  great  number  of  these  instruments,  these  arti- 
ficial means  of  adaptation,  are  the  monopoly  of  a  special  class 
which  frequently  uses  them  for  the  oppression  of  others ;  but  yet, 
the  benefits  which  they  produce  are  greater  than  the  evil  which 
they  cause  to  society.  Man,  after  he  accumulates  material  wealth, 
builds  up  a  spiritual  inheritance  of  experience  and  knowledge 
which  enables  him,  in  the  face  of  the  surrounding  forces  of  nature, 
to  ward  off  certain  pains  and  to  promote  certain  pleasures.  Ani- 
mals, also,  accumulate  a  similar  capital  in  the  form  of  organized 
memory  and  of  instincts,  but  it  is  insignificant  in  comparison  with 
that  acquired  by  humanity  from  generation  to  generation. 

By  the  aid  of  spoken  language  and  the  invention  of  writing, 
the  human  species  is  able  to  communicate  among  its  members, 
and  to  transmit  to  its  descendants,  an  endless  mass  of  experiences 
and  of  information  which  facilitates  the  progress  of  adaptation. 
Of  this  knowledge,  one  part  concerns  the  manner  in  w^hich  man 
should  comport  himself  in  relation  to  surrounding  organic  and 
inorganic  nature ;  the  other,  on  the  contrary,  concerns  his  attitude 
toward  his  fellows,  to  avoid  their  individual  or  collective  reaction. 

§  4.  Origin  and  Evolution  of  Law.  In  the  primitive  horde, 
each  individual  seeks  voluntarily  to  satisfy  his  wants  without 
coming  into  conflict  with  his  associates,  so  as  not  to  incur  unneces- 
sary hardships  or  expose  himself  to  dangers.  But  it  happens, 
inevitably,  that  individuals  are  driven  to  struggle  amongst  them- 
selves ;  because,  in  a  certain  measure,  each  one  is  an  obstacle  to 
the  others  in  the  conquest  of  the  things  necessary  for  life.  These 
contests  are  a  source  of  good  or  evil  for  the  individual,  according 
to  his  victory  or  defeat.  Little  by  little  experience  produces 
the  rule  of  individual  conduct  —  "  attack  others  only  when  by 
calculation  you  may  hope  to  be  successful."  Thus,  whenever 
the  individual  refrains  from  an  act  which  may  injure  another,  it 
is  not  that  he  considers  the  act  in  itself  as  wrong  or  illicit,  but  only 
because  he  dreads  a  reaction  capable  of  bringing  on  him  an  evil 
greater  than  the  benefit  which  he  desires. 

As  long  as  organized  force  does  not  exist  within  the  horde, 
and  as  long  as  each  adult  individual  meets  conditions  as  they  arise 


/ 
Chap.   XIX.]  STRUGGLE   AND   ADAPTATION  477 

as  best  he  can,  aggression  is  profitable  for  those  who  are  able  to 
calculate  accurately  their  own  forces  and  those  of  the  adversary, 
and  detrimental  for  those  who  do  not  successfully  make  this 
estimate  of  power.  But  when  nuclei  of  associations  of  a  definite 
number  of  men  are  formed  within  the  group  which  react  in  a  body 
then,  if  a  stranger  makes  aggression,  or  commits  an  offense  against 
one  of  the  members,  it  is  almost  certain  that  he  will  fare  badly* 

By  virtue  of  repetition  of  this  sort  of  experience,  it  is  not  long 
before  a  rule  of  conduct  is  formed  which  counsels  abstinence  from 
certain  kinds  of  acts  solely  for  the  reason  that  they  are  habitually 
followed  by  painful  reactions.  When  the  causal  connection 
between  the  act  and  the  painful  reaction  becomes  fixed,  then  such 
an  act  is  regarded  as  intrinsically  pernicious,  and  therefore  illicit. 

Doubtless,  the  mental  process  here  in  question  is  not  as  simple 
as  we  have  stated  it.  There  are  a  thousand  causes  which  have 
affected  its  development.  In  the  first  place,  it  is  certain  that 
ages  have  passed  before  there  existed  a  solidarity  of  individuals 
capable  of  reacting  against  what  gives  offense  to  any  one  of  them. 
In  the  next  place,  these  allied  individuals,  counting  on  the  power 
of  their  associates,  have  been  able  to  inflict  injury  with  impunity 
on  strangers  not  yet  organized,  which  they  themselves  had  already 
begun  to  consider  as  illicit,  and  which  has  made  imcertain  the 
establishment  of  a  definite  rule  of  conduct.  Since,  however,  the 
advantage  of  these  alliances  was  very  great,  it  must  be  admitted, 
as  all  the  facts  prove,  that  they  have  originated  at  nearly  the 
same  time,  and  with  the  result  that  impunity  has  not  been  suffi- 
ciently frequent  to  prevent  such  acts  being  considered  as  illicit 
w^hich  for  the  greater  part  were  followed  by  painful  reactions. 

The  same  solidarity  between  the  members  of  each  group  or  clan, 
also,  would,  for  special  reasons,  prevent  the  member  of  one  group 
from  inflicting  injury  on  a  member  of  another  organization  which 
in  reacting  would  involve  not  only  the  transgressor  but  his  asso- 
ciates as  well.  The  practice  is  known  of  punishing  the  culprit 
directly,  or  of  delivering  him  over  to  the  one  offended  to  take  his 
revenge,  in  order  to  avoid  reprisals. 

In  this  fashion,  there  springs  up  from  an  external  reaction  which 
is  under  the  control  of  those  injured,  an  internal  reaction  emanating 
from  the  members  of  the  clan  of  the  offender;  and  as  a  conse- 
quence of  this,  certain  acts  come,  more  and  more,  to  be  regarded  as 
prejudicial  and  illicit. 

We  have  pointed  out  how  experience  teaches  man  to  abstain 
from  certain  acts.    We  have  now  to  show  how  under  the  do- 


478  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

minion  of  pleasure  and  pain,  man  is  brought  to  act  in  favor  of  his 
associates. 

It  is,  first  of  all,  unnecessary  to  observe  that  sociality  always 
involves  cooperation.  Men,  even  in  the  most  primitive  state,  as 
well  as  all  animals,  give  aid  to  each  other,  and  defend  women  and 
children  against  external  aggression ;  without  which  defense  the 
group  would  not  have  survived.  With  the  appearance  of  the  clan, 
the  competition  for  life  began  to  impress  on  the  members  an 
organic  tendency  toward  solidarity.  The  Australian  savage  who 
suffers  and  wastes  away  until  the  moment  when  he  revenges  the 
death  of  his  parent,  and  the  Fuegian  who  voluntarily  shares  a 
gift  with  his  companions  give  evidence  of  this  tendency  in  a  form 
almost  organic. 

Furthermore,  in  the  bosom  of  the  clan,  rules  of  voluntary  con- 
duct are  soon  formed;  that  is  to  say,  rules  of  conduct  governed 
by  actual  calculation  of  pleasures  and  pains.  Again,  the  existence 
of  the  clan  demands  necessarily  certain  discipline,  and  also  ade- 
quate authority  of  a  chieftain.  Any  one  who  disobeys  him, 
subjects  himself  not  only  to  disapproval  of  his  companions,  but 
also  to  punishment.  By  repetition,  the  orders  of  the  chieftain 
become  imperative  rules  of  conduct,  and  obedience  becomes  a  duty 
subject  to  compulsion.  What  is  said  of  the  orders  of  the  chieftain 
applies  with  greater  force  to  the  commands  given  by  a  tribal 
council,  and,  in  a  later  era,  by  the  monarch. 

Among  these  commands,  those  which  have  a  general  character 
are  handed  down  to  the  descendants  who  observe  them,  if  for  no 
other  reason,  in  order  not  to  provoke  the  spirits  of  their  ancestors. 

Careful  observation  discloses  that  the  first  glimpses  of  law  are 
seen  when  the  clan  is  formed.  It  is  then,  in  fact,  that  an  external 
collective  reaction  arises,  as  yet  in  part  indistinct,  against  whom- 
soever offends  against  the  members  of  the  clan,  and  an  internal 
sanction  which  tends  to  assure  a  certain  solidarity  and  a  certain 
discipline  among  its  own  members ;  and  tends,  also,  to  prevent 
harm  by  these  members  to  members  of  other  clans  which  st:imu- 
late  reactions  by  means  of  vengeance  and  reprisals. 

It  seems  to  us  that  the  view  that  law  begins  with  the  State  is 
as  erroneous  as  that  view  which  supposes  that  it  arises  with  the 
patriarchal  family.  The  latter  view  evidently  assumes  that  the 
family  is  anterior  to  the  clan  and  to  the  State ;  while  it  is  known  to 
be  a  later  phenomenon  than  either  of  them. 

Such  is  the  process  in  general  in  simple  human  groups,  which 
produces  definite,  imperative  rules  of  conduct.     But  in  compound 


Chap  XIX.]  STRUGGLE   AND  ADAPTATION  479 

groups,  the  process  is  more  rapid  and  more  complicated.  The 
fact  is  established  that  when  one  people  subjugates  another,  the 
victors,  after  having  eliminated  the  most  dangerous  members  and 
after  having  terrified  the  others,  impose  on  the  latter,  by  the 
menace  of  drastic  punishments,  certain  rules  of  conduct  tending 
to  prevent  them  from  revolting  or  from  harming  in  any  manner 
their  oppressors,  and  also  to  prevent  mutual  injuries  among 
themselves  in  any  manner  to  diminish  the  advantages  which  the 
conquerors  seek  to  obtain.  Finally,  the  conquerors  organize  to 
better  their  political  constitution  for  the  purpose  of  holding  the 
subjugated  elements  under  control.  The  victors  submit  to  cer- 
tain rules  of  conduct  to  prevent  dissensions  and  reprisals  and  to 
assure  to  their  members  a  share  in  the  exploitation  of  the 
vanquished. 

The  fact  of  struggle  for  supremacy  among  the  various  social 
classes  itself  creates  with  certain  limitations  rights  and  juridical 
duties,  privileges,  and  honors  very  similar  to  those  which  arise 
when  one  people  superposes  itself  upon  another.  Such  are  the 
most  general  rules  of  conduct  which  are  regularly  developed  in 
human  groups.  As  is  apparent,  they  vary  in  detail  from  group 
to  group,  according  to  the  case  and  the  circumstances. 

Besides  these,  the  most  usual  sources  of  law,  there  is  another 
which  tends  to  ward  off  every  sort  of  evil,  real  or  imaginary,  which 
strikes  the  members  of  the  clan  indiscriminately;  such,  for  ex- 
ample, as  fires,  inundations,  epidemics,  etc.  But  the  rules  of 
conduct  which  are  formulated  to  avoid  these  calamities,  instead 
of  being  beneficial,  are  for  a  long  time  sources  of  injury  to  the  social 
body.  Man  in  his  ignorance  attributes  a  large  number  of  evils 
caused  by  the  blind  forces  of  nature  to  divine  reprobation,  to  the 
vengeance  of  gods  or  the  spirits  of  ancestors.  Thus,  instead  of 
searching  for  means  to  combat  these  forces  and  to  turn  aside  their 
deadly  thrust,  man  has  had  recourse  to  blood  sacrifices,  and  to 
holocausts,  to  appease  the  anger  of  supernatural  agencies. 

Furthermore,  a  large  number  of  acts  and  omissions  considered 
as  displeasing  to  the  gods  have  been  punished.  The  evils  which 
have  resulted  to  humanity  from  these  deplorable  superstitions 
which  still  continue  to  claim  victims  and  to  produce  unhappiness, 
are  beyond  calculation. 

Lastly,  with  the  growth  of  wealth,  industry,  and  commerce 
new  wants  have  arisen  which  have  produced  new  rules  of  juridical 
conduct  for  the  protection  of  production  and  exchange  of  goods, 
and  for  assuring  the  enjoyment  of  private  and  public  advantages. 


480  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

Such  is  the  natural  origin  of  law.  Its  function  consists  in  adapt- 
ing human  beings  to  their  surroundings,  and  in  fixing  the  condi- 
tions of  their  [social]  coexistence.  The  conditions  imposed  by 
law  for  [social]  coexistence  are  not  those  which  ought  to  be  selected 
for  assuring  the  greatest  measure  of  prosperity  among  all  the 
members  of  society;  but,  rather,  they  are  those  which  result 
from  the  actions  and  reactions  among  men  at  a  given  historical 
moment.  Born  in  ignorance,  and  having  only  his  experiences 
as  guide,  man  has  groped  his  way  on  the  earth  seeking  to  satisfy 
in  the  best  manner  possible  the  many  necessities  which  beset 
his  way.  He  has  also  paid  dearly  for  all  his  mistakes,  marking 
with  his  tears  and  with  his  blood  the  long  road  which  he  has 
traveled.  It  is,  therefore,  because  he  has  been  driven  by  the  forces 
of  nature  and  by  his  fellowmen,  that  he  has  followed,  little  by  little, 
and  unconsciously,  a  path  less  strewn  with  thorns  and  tribulations. 

Although  the  struggle  for  existence  between  different  human 
groups  has  been  and  continues  to  be  the  source  of  infinite  suffering 
and  evil,  yet  it  must  be  recognized  that  it  has  in  a  large  degree 
favored  the  progress  of  the  human  race.  Man  acts  as  he  feels, 
as  he  understands,  and  as  he  can,  but  of  what  he  does  only  that 
is  lasting  which  has  the  effect  of  assuring  his  survival.  This 
result  does  not  follow  a  providential  will,  or  a  pre-established 
order  of  things,  but  is  the  consequence  of  the  blind  labor  of  nature 
—  that  is  to  say,  of  the  totality  of  cosmic  forces. 

The  fact  that  the  peoples  with  the  best  internal  organization, 
i.e.  where  the  individuals  are  best  adapted  to  each  other,  have  a 
greater  probability  of  surviving,  and  enjoy  greater  prosperity 
than  other  peoples,  leads  indirectly  to  the  dominance  and  exten- 
sion of  their  social  organization ;  because  with  the  advancement 
of  such  peoples  their  laws  and  customs  also  survive  and  triumph. 
In  the  measure  that  this  effect  repeats  itself  under  the  pressure 
of  competitive  forces  of  life,  customs  and  laws  become  more 
favorable  to  human  adaptation,  and  become  more  adequate  to 
the  conservation  and  prosperity  of  the  whole  social  group. 

While  each  family  and  each  individual  act  in  their  own  interest, 
the  natural  law  of  survival  operates  unconsciously  and  organically 
in  the  collective  interest.  That  the  greater  part  of  the  customs, 
laws,  and  institutions  favorable  to  collective  life,  as  well  as  those 
sentiments  which  are  called  altruistic,  or  preferably  social,  are 
created  by  the  blind  but  beneficent  processes  of  nature  is  a  fact 
which  cannot  be  questioned.  It  is  true  that  numerous  circum- 
stances have  disturbed  the  process  of  selection,  but  they  have 


Chap.   XIX.]  STRUGGLE  AND  ADAPTATION  481 

only  had  the  effect  of  rendering  its  course  less  direct,  but  not  of 
arresting  it. 

Besides  this  organic  and  involuntary  process,  there  is  another, 
conscious  and  involuntary,  which  directs  the  evolution  of  law  and 
of  human  institutions.  In  speaking  of  compound  social  groups, 
we  have  seen  that  the  conquerors  never  succeed  in  adapting  a 
conquered  people,  in  a  stable  and  permanent  fashion,  to  their 
wants  and  caprices.  We  have  also  seen  that  the  vanquished 
element,  profiting  by  all  favorable  conditions,  force  from  the  con- 
querors concessions,  and  compel  them  to  enact  less  oppressive  and 
less  harmful  laws.  We  have  finally  also  seen  that  in  the  course 
of  time,  the  conquered  element  succeeds  in  becoming  organized 
in  a  political  class  which  participates  in  government.  Each  of  the 
changes  which  occurs  in  human  groups  by  the  action  and  reaction 
of  forces  operating  against  each  other,  results  in  progress  in  the 
law  and  in  institutions,  and  in  a  better  adaptation  of  mankind 
to  social  life.   .   .   . 

§  5.  Origin  and  Evolution  of  the  State.  "Be  it  or  be  it  not 
true  that  man  is  shapen  in  iniquity  and  conceived  in  sin,  it  is 
unquestionably  true  that  government  is  begotten  of  aggression 
and  by  aggression."  ^ 

In  the  beginning  of  the  State  the  chief  is  a  warrior.  His  au- 
thority which  is  temporary  does  not  extend  beyond  attack  and 
defense  and  acts  strictly  connected  with  them.  For  the  rest, 
the  individuals  of  the  group  conduct  themselves  in  accordance 
with  traditional  habits  formed  under  the  empire  of  natural  selec- 
tion of  the  public  opinion  of  the  living  and  the  dead. 

Even  when  the  chieftain's  authority  begins  to  take  on  a  per- 
manent character,  protection  of  the  group  members  does  not  fall 
to  him  in  times  of  peace,  but  rests  with  the  clan,  which  has  an 
organization  and  a  government  of  its  own  for  the  defense  and 
discipline  of  its  members.  The  chieftain  intervenes  in  private 
disputes  only  as  a  peace-maker  or  arbitrator  in  order  to  avoid 
reprisals  between  different  clans,  which  might  endanger  the  suc- 
cess of  military  enterprise. 

Protection  of  the  interests  of  the  social  group  is  rather  confided 
to  a  council  of  elders  than  to  the  chieftain,  who  is  usually  one  of 
their  peers.  But  when  wars  commence,  the  chieftain  gradually 
usurps  the  powers  of  the  council  of  elders,  and,  in  part,  those  of 
the  leaders  of  the  clans.     In  time,  he  arrogates  to  himself  the  power 

^  Spencer,  "The  Sins  of  Legislators",  p.  1,  reprinted  in  "The  Man 
versus  the  State",  London,  1907,  p.  44. 


482  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

to  punish  not  only  wrongs  committed  against  himself  and  his 
followers,  but  also  those  which  might  provoke  the  resentment 
of  strangers  and  cause  them  to  make  war  against  the  group.  He 
looks  to  it,  furthermore,  that  no  one  offends  the  gods  or  the  spirits 
of  ancestors  who  may  visit  destructive  punishments  on  the  whole 
community.  When  he  sees  in  private  quarrels  an  interest  to  him 
direct  or  indirect,  he  intervenes,  but  no  longer  as  a  peace-maker 
but  as  a  judge.  He  compels  the  party  offended  to  accept  com- 
position, and  he  inflicts  punishments  and  fines  on  the  guilty.  .  .  . 

In  the  degree  that  this  method  of  intervention  increases,  de- 
fensive action  of  the  clan  becomes  less  necessary  and  tends  to 
disappear  except  for  economic  reasons.  .  .  .  But  the  dissolution  of 
the  clan  imposes  new  obligations  upon  the  government.  The 
patriarchal  family,  it  is  true,  discharged  many  functions  which 
before  devolved  on  the  clan,  but  its  action  is  much  weaker  and 
much  more  restricted.  The  family,  for  example,  continues  to 
avenge  offenses  against  its  members ;  but  frequently  it  is  compelled 
to  submit  to,  and  often  to  invoke,  the  intervention  of  the  govern- 
ment, because  it  is  not  able  to  resist  it,  or  because  it  is  unable  to 
punish  offenders  as  directly  as  could  the  clan. 

But  it  is  less  for  the  protection  of  the  person  than  for  the  pro- 
tection of  property  that  government  becomes  indispensable. 
While  the  clan  endures,  the  impossibility  for  individuals  of  living 
outside  of  it  and  its  communistic  regime,  prevents  the  formation 
of  classes  of  rich  and  poor.  Usurpations  are  found  but  not  attacks 
on  property. 

When  the  clan  disappears,  not  only  does  the  communistic 
regime  end,  but  outside  the  gentile  family,  a  large  number  of 
isolated  individuals  are  found  who  are  joined  by  outcasts,  criminals, 
and  others;  whereupon,  in  course  of  time,  two  opposed  classes 
appear  —  the  rich  and  the  poor.  The  rich  in  order  to  combat  the 
poor  gather  about  a  chieftain  whose  force  they  strengthen  to  pre- 
vent possible  aggressions  of  the  poor,  or  they  constitute  themselves 
into  an  oligarchical  republic  to  provide  a  defense  for  the  interests 
of  all. 

But  when  a  people  has  attained  a  certain  stage  of  social  develop- 
ment, following  usually  military  conquest,  a  new  impulse  is  given 
to  the  evolution  of  the  State.  The  victors,  in  order  to  keep  the 
conquered  element  in  submission,  and  to  exploit  them  for  their  own 
advantage,  must  achieve  a  better  disciplined  organization  which 
requires  greater  cohesion  and  greater  activity  of  the  State.   .   .   . 

Spencer  has  demonstrated  that  in  the  measure  in  which  the  mili- 


Chap  XIX.]  STRUGGLE   AND  ADAPTATION  483 

tary  regime  gives  way  to  the  industrial  order,  social  co-operation 
becomes  voluntary  and  contractual,  that  is  to  say,  independent 
of  the  direct  action  of  the  State.  While  wars  continue,  the  neces- 
sities of  defense  and  attack  impose  upon  the  State  the  burden  of 
regulating  in  a  direct  and  imperative  way,  all  the  activities  of  its 
subjects,  and  require  it  to  demand  from  its  subjects  absolute 
obedience.  On  the  contrary,  when  societies  become  less  warlike 
and  more  inclined  to  the  industrial  arts,  the  State  no  longer  needs 
to  regulate  in  this  manner  the  activities  of  individuals  who,  there- 
fore, acquire  greater  liberty. 


The  evolution  of  the  State  proceeds  in  this  fashion  :  on  one  hand, 
the  State  tends  to  render  a  greater  measure  of  public  service ;  and, 
on  the  other  hand,  to  limit  always  in  a  lesser  degree  the  liberty 
of  the  individual. 

But  if  we  adhere  to  this  statement,  it  may  be  shown  that  it 
gives  but  an  incomplete  notion  of  the  function  of  the  State  and  of 
the  evil  and  the  good  which  it  produces.     Let  us  examine  further. 

That  subordination  and  obedience  to  a  chieftain  operate  ef- 
fectively for  the  success  of  military  enterprises  is  certain.  Again, 
they  produce  indisputable  advantages  in  assuring  the  survival  of 
the  group ;  but  they  also  lead  not  only  to  the  sacrifice  of  individual 
liberty,  but  render  possible  a  great  number  of  abuses  which  spring 
from  the  egoism  of  leadership.  The  maxim  that  he  who  commands 
political  power  constantly  uses  it  to  further  his  own  interests,  is 
written  in  letters  of  blood  upon  all  the  pages  of  history.    .   .   . 

To  avail  of  figurative  language,  we  might  say  that  the  State 
is  born  with  a  function  of  directing,  of  converging,  all  individual 
forces  to  a  common  center,  in  such  manner  that  the  group  may 
overcome  the  rude  struggles  for  existence ;  and  that  when  it  has 
become  a  permanent  organ,  it  seeks  to  advance  in  the  best  way 
possible  its  existence  and  its  well-being.  While  each  organ  of 
animal  life  requires  equal  reparation  of  the  losses  sustained  in  the 
performance  of  its  functions,  the  organ  called  the  State  absorbs 
a  much  greater  quantity  of  nutritive  elements  than  would  be 
necessary  according  to  biological  law. 

The  result  is  that  the  organ  of  the  State  suffers  from  hyperemia 
and  the  cells  of  other  organs  suffer  from  anemia,  in  consequence 
of  which  the  social  body  sickens,  or,  perhaps,  dies.  Human 
groups  then  pay  dearly  for  the  functions  of  the  State  whose  evils 
are  greater  than  its  advantages.    Nevertheless,  it  is  certain  that 


484  FACTORS    OF   LEGAL   EVOLUTION  [Part  II. 

in  the  struggle  for  life  the  better  governed  groups  have  the  ad- 
vantage against  those  groups  subjected  to  tyranny.  .  .  . 

Another  cause  of  attenuation  results  from  being  deprived  of  a 
share  in  the  government.  This  is  demonstrated  by  the  case  of 
the  Roman  Plebs,  who  so  long  as  they  had  no  part  in  the  govern- 
ment did  not  enjoy  the  protection  of  the  laws.  .  .  .  The  same 
fact  is  seen,  in  general,  in  all  compound  social  groups  where 
the  vanquished  element  is  oppressed  by  the  laws.  ,  .  .  The  only 
protection  customarily  given  is  that  which  a  master  accords 
to  domestic  animals,  with  the  difference  that  man,  being  a  more 
dangerous  animal,  is  treated  with  greater  harshness  than  the 
beast  of  burden.  .  .  .  Yet  liberation  is  a  necessary  and  inevitable 
fact  which  results  from  the  impossibility  of  perpetually  adapting 
the  vanquished  element  to  the  wants  and  caprices  of  the  con- 
querors. 

The  political  generalization  which  follows  is  that  participation 
in  the  government  and  the  restriction  which  results  of  the  para- 
sitical function  of  the  State,  are  necessary  and  inevitable  phenom- 
ena which  violence  may  retard  but  cannot  stay. 

We  arrive  at  the  same  conclusions  by  another  order  of  thought. 

In  the  infancy  of  mankind  when  wars  are  continuous,  the  mili- 
tary class  commands,  and,  as  we  have  seen,  does  not  permit  any 
other  class  to  participate  in  the  government  or  enjoy  advantages 
from  it.  Later  when  a  sacerdotal  class  gets  the  upper  hand  we 
find  participation  in  government  extending,  although  unequally, 
to  the  military  class  without  which  the  sacerdotal  class  would  be 
unable  to  maintain  its  dominion. 

Under  an  aristocratic  regime,  beside  the  dominating  class  of 
the  noble  and  the  rich,  we  see  two  other  classes  taking  a  share 
in  the  government,  although  in  a  subordinate  degree  —  the  mili- 
tary class  and  the  sacerdotal  class.  Lastly,  under  a  democratic 
regime,  participation  in  government  becomes  virtually  general; 
and  we  say  virtually,  because  it  is  a  majority  which  in  fact  rules 
over  a  minority,  which  indicates  notable  progress. 

It  is  reserved  for  the  future  to  render  participation  in  govern- 
ment not  more  nominal  but  more  effective,  and  thus  to  bridle 
the  abuses  which  majorities  may  inflict  on  minorities  .  .  .  and  to 
reach  a  political  and  social  organization  better  adapted  to  the  ends 
of  human  life.   ... 


Chapter  XX 

ARBITR.\MENT    AND    GUARANTY    IN  THE    ORIGIN   OF 

LAWi 

§  1.    The  Arbitral  Element  in  Law.  |  §  2.    The  Idea  of  Guaranty. 

§  1.  The  Arbitral  Element  in  Law.  However  small  according 
to  certain  scholars  may  have  been  the  part  played  by  the  intellect 
in  the  formation  of  societies,  it  cannot  be  doubted  that  each 
society  is  organized  in  view  of  an  object  —  not,  of  course,  an  ideal, 
such  as  the  realization  of  the  moral  law,  or  a  union  of  finite  beings 
under  an  infinite  principle,  but  an  empirical  end  capable  of  being 
understood  by  the  most  uncultivated  mind.  The  object  of 
society  thus  conceived  and  delimited  is  that  of  a  competitive 
association  where  the  struggle  for  life  has  been  reduced  to  a 
minimum.  Every  association,  even  one  composed  of  animals,  as 
Espinas  has  shown  in  his  "  Societes  animales ",  has  a  vague 
consciousness  of  this  fact.  In  the  face  of  a  common  danger 
the  instinct  of  common  safety  is  aroused  with  such  force  and  so 
clearly  as  to  defy  all  the  sophisms  of  individualism.  .  .  . 


Law  expresses  a  contrast  between  the  pursuit  of  social  ends  and 
the  minimum  of  an  inevitable  competition  for  life,  even  in  the 
most  highly  organized  societies.  But  if  the  idea  of  law  expresses 
this  contrast,  the  law  itself  is  a  reaction  from  the  sociability  which 
tends  to  make  this  contrast  disappear  by  reducing  in  the  great- 
est possible  measure  the  conflict  of  wants  to  a  minimum.  The 
social  activity  which  turns  aside  natural  dangers,  epidemics, 
attacks  of  the  animal  world,  and  the  aggressions  of  outside  groups, 
is  reinforced  by  the  effort  to  appease,  or  to  restrain  in  the  ways 
of  peace,  the  conflicts  of  individual  desires. 

^  [By  Gaston  Richard. 

Translated  from  "L'Origine  de  I'id^e  de  droit",  Paris,  Thorin  et  Fils, 
1892  (pp.  1,  5-12,  16,  19-21,  23-31  et  seq.,  by  Albert  Kocourek.] 

485 


FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

We  may  now  understand  how  the  association  of  the  ideas  of 
litigation  and  of  arbitration  is  the  first  definite  element  of  the 
idea  of  law. 

In  a  lawsuit  two  elements  are  to  be  distinguished :  the  conflict 
of  interests  and  of  wants  which  constitute  its  subject-matter; 
the  procedure,  where  recourse  to  arbitration  prevents  the  conflict 
from  degenerating  into  open  combat.  The  first  is  the  anti-social 
and  anti-juridicial  element  of  the  lawsuit;  the  second  implies 
the  recognition  of  social  jurisdiction.  Separated  from  the  pro- 
cedure, which  is  confused  with  it  and  which  constitutes  the 
juridical  element,  litigation  is  a  partial  destruction  of  social  life. 

In  the  first  place,  the  simple  fact  of  litigation  indicates  that 
between  the  individuals  and  the  groups  which  it  separates,  sociality 
no  longer  exists.  In  substance  sociality  is  above  all  an  accord  of 
feeling  and  a  congruity  of  activities;  litigation  results  from  a 
discord  of  feeling  and  a  conflict  of  activities.  In  the  second  place, 
the  fact  of  litigation  belies  the  act  of  faith  upon  which  sociality 
rests;  that  is  to  say,  that  society  is  a  combination  of  efforts  of 
a  multitude  of  persons  to  render  mutual  assistance  in  the  struggle 
for  existence.  Multiply  by  supposition  the  litigation  in  a  society : 
suppose  that  there  spring  up  disputes  about  labor,  about  the  divi- 
sion of  wealth,  about  marriage  unions,  about  successions  to  prop- 
erty, about  education,  about  religion,  about  matters  of  deport- 
ment, about  distribution  of  taxes,  about  the  relations  between 
private  persons  and  magistrates  —  here  we  have  a  picture  of  a 
society  in  the  midst  of  dissolution,  since  the  combination  of  acts 
necessary  to  its  existence  has  entirely  given  way  to  conflicts  of 
activity. 

Every  mind  creates  a  representation  of  litigation  —  a  rough 
sketch  of  the  idea  of  law.  A  confused  state  of  consciousness,  a 
pure  feeling,  may  be  transmuted  into  an  idea  if  it  is  limited  by 
concrete  images.  Now,  that  a  lawsuit  may  be  represented  to  the 
mind  by  a  train  of  concrete  images  —  nothing  is  less  debatable. 
A  lawsuit  is  a  struggle,  a  conflict  of  wants  and  claims.  These 
claims  relate  in  general  to  possession  of  some  material  object. 
We  know,  on  the  other  hand,  that  among  a  plurality  of  concrete 
images,  one  of  them  ordinarily  becomes  dominant,  impressing 
itself  on  the  attention,  and  afterwards  on  the  memory,  and,  in 
short,  becoming  a  symbol.  It  is  thus  that  two  extended  wings 
sum  up  for  us  the  train  of  images  associated  with  the  vision  of  a 
bird.  It  is  the  same  in  the  representation  of  a  lawsuit.  It  is 
condensed  by  the  symbolical  representation  of  a  drama;    it  is 


Chap.   XX.]  ARBITRAMENT  AND   GUARANTY  487 

constituted  of  a  very  small  number  of  images  expressing  a  physi- 
cal combat,  a  duel  between  two  men  who  dispute  over  an  object. 

The  almost  universal  forms  of  primitive  procedure  are  instruc- 
tive in  this  connection.  The  most  eloquent  of  these,  and  at  the 
same  time  the  most  definite  and  most  classical,  is  the  sacramentum 
of  primitive  Roman  law.  Two  men  dispute  over  a  slave.  The 
plaintiff  armed  with  a  spear  touches  with  it  the  object  in  litigation 
and  pronounces  a  formula  which  states  his  claims.  The  defendant 
in  turn  lowers  his  spear  on  the  same  object  and  pronounces  the 
same  formula.  A  symbolical  image  of  a  combat  preceded  by 
the  announcement  of  two  rival  claims,  such  is  the  primitive  rep- 
resentation of  a  lawsuit.  .  .  . 

Our  conclusion  regarding  the  symbolical  representation  of  a 
lawsuit  accords  with  contemporary  psychology.  We  do  not  say 
that  such  a  representation  is  necessary,  since  the  moral  sciences 
have  familiarized  us  with  the  idea  of  contingency.  But  we  know 
how  one  of  the  elements  of  the  idea  of  a  lawsuit  is  formed  empiri- 
cally. The  representation  of  the  conflict  is  only  the  conscious 
datum  of  the  competitive  contest  of  life  or  of  the  more  definite 
and  more  limited  struggle  of  wants.  It  contrasts,  therefore,  with 
the  concept  of  social  ends.  We  may  infer  that  the  latter  submits 
to  a  corresponding  transformation.  ... 


If  the  representation  of  social  ends  contrasts  with  the  repre- 
sentation of  litigation,  it  ought  then  to  clothe  the  form  of  an  at- 
tempt toward  the  restoration  of  the  social  life  which  has  been  in 
part  destroyed.  The  representation  of  litigation  is  the  symbolical 
image  of  a  combat  in  motion.  The  idea  of  social  ends  which  is 
associated  with  it  by  contrast  will  be  that  of  a  conciliatory  inter- 
vention capable  of  ending  the  dispute,  whether  by  bringing  into 
accord  the  conflicting  claims,  or  by  giving  satisfaction  to  one  by 
the  condemnation  of  the  other.  In  a  word  it  will  represent  the 
intervention  of  an  arbitrator. 

The  ancient  monuments  of  primitive  procedure  and  the  Ro- 
man procedure  of  the  sacramental  action  verify  this  conclusion. 
The  two  contestants  have  placed  their  spears  on  the  object  of 
the  litigation,  and  each  has  pronounced  the  formula  of  his  claim. 
The  symbolical  combat  ("  manuum  consertio  ")  then  takes  place. 
But  a  word  from  the  praetor  arrests  it.  He  commands  the  adver- 
saries to  release  the  contested  object  ("mittite  ambo  hominem  "). 
After  pronunciation  of   certain   other   formulas,  the  magistrate 


488  FACTORS    OF    LEGAL   EVOLUTION  [Part  II. 

designates  one  of  the  contestants  to  have  provisional  possession 
of  the  thing  in  controversy.  The  lawsuit  is  not  vacated,  but 
combat  is  avoided. 

The  concept  of  an  arbitral  sentence,  associated  with  the  idea  of 
conflict,  contributes  to  form  the  notion  of  a  lawsuit.  Is  it  an 
element  essential  to  the  idea  of  law?  Our  habits  of  thought 
toward  metaphysics  make  repugnant  any  connection  whatever 
between  the  concept  of  an  action  and  the  idea  of  law.  Neverthe- 
less, the  lawsuit  is  proof  of  the  existence  of  law.  Abandoning, 
however,  this  discussion,  we  are  able  to  show  directly  and  by  the 
most  rigorous  methods  that  without  the  representation  of  arbitra- 
tion there  would  not  be  any  idea  of  law. 

Putting  aside  for  the  moment  all  metaphysical  definitions,  each 
one  will  admit  that  empirically  law  is  a  condition  of  things  where 
one  claim  may  overcome  another  contrary  claim  without  recourse 
to  violence  and  without  possession  of  superior  force.  Let  us  sup- 
pose that  for  the  exercise  of  the  right  to  think  differently  than 
the  majority,  or  of  the  right  of  property,  there  is  wanting  force 
superior  to  those  who  make  contrary  claims  in  the  matter.  We 
must  acknowledge  that,  in  this  case,  liberty  of  conscience  and  the 
right  of  property  are  only  vain  words.  Law  implies  the  possibility 
of  an  equality  of  the  claims  of  the  weak  with  the  claims  of  the 
strong.  As  thus  conceived,  law  rests  on  the  idea  of  arbitrament. 
To  suppress  this  idea  is  to  destroy  not  only  the  reality  of  law,  but 
also  the  notion. 

The  state  of  society  which  we  are  daily  able  to  observe  presents 
conflicts  regulated  by  an  imperative  arbitrament  and  also  other 
conflicts  which  are  not  subject  to  any  other  than  permissive 
arbitrament.  A  comparative  method  equivalent  practically  to 
the  experimental  method  permits  us,  therefore,  to  make  a  rigorous 
examination  of  arbitral  relations  and  of  the  law. 

Let  us  suppose  judicial  adjustment  to  be  suppressed  in  those 
circumstances  where  today  there  is  compulsory  regulation  of  con- 
flict, and  we  should  find  private  combat  and  violence  reappearing 
as  in  primitive  ages.  Suppose  again  arbitrament  to  be  intro- 
duced in  those  cases  where  there  is  not  now  any  regulation'  of  con- 
flict, and  we  should  see  war  and  violence  disappear  where  humanity 
still  today  suffers.^ 

1  [These  lines  were  written  more  than  twenty  years  before  the  beginning 
of  the  great  European  war  which  at  this  moment  after  forty  months  of 
conflict  has  already  cost  hundreds  of  thousands  of  lives  and  billions  of 
dollars.  —  Ed.] 


Chap.   XX.]  ARBITRAMENT  AND   GUARANTY  489 

Among  creditors  and  debtors  there  is  today  a  compulsory  system 
for  the  adjustment  of  defaulted  debts.  The  creditor  may  con- 
strain the  insolvent  debtor  to  discharge  the  debt;  but  he  must 
first  on  the  petition  of  a  ministerial  officer,  an  attorney,  obtain  a 
judgment.  Judgment  is  not  given  in  his  behalf  unless  he  presents 
proof  of  the  obligation.  Judgment  being  rendered  for  him,  he 
may  proceed  by  way  of  execution,  but  here  again  he  must  resort 
to  a  ministerial  officer,  a  bailiflP.  .  .  .  Between  the  feeling  of  injury 
experienced  by  the  creditor  and  the  vindicative  impulses  which 
spring  from  this  injury,  on  one  hand,  and  violence  of  resistance 
on  the  part  of  the  debtor,  civilized  society  has  established  a  com- 
plex arbitrament  in  which  we  may  deplore  its  delays  but  which 
results  in  avoiding  private  war.  The  very  imperfections  of  this 
system  attest  that  it  is  the  slow  labor  of  secular  traditions. 

Now  let  us  suppose  the  abolition  of  this  system>  and  let  us 
withdraw  in  the  presence  of  an  unpaid  creditor  and  a  defaulting 
debtor.  We  have  not  the  simplicity  to  believe  that  the  creditor 
will  benevolently  endure  the  injury  of  which  he  is  the  victim. 
He  will  attempt  to  recover  by  force  the  equivalent  of  that  of  which 
bad  faith  has  deprived  him.  In  this  enterprise  he  will  ask  the 
assistance  of  those  near  to  him,  and  if  they  are  under  his  authority, 
he  will  require  their  aid.  On  the  other  hand,  the  debtor  will  not 
submit  to  violence  without  resistance,  if  resistance  offers  any 
chance  of  success.  He  will  bear  arms,  and  he  will  arm  those  near 
to  him.     Private  war  will  take  the  place  of  the  lawsuit.^ 

Where  a  method  of  social  arbitrament  has  not  yet  been  devised 
in  primitive  law,  no  distinction  can  be  discerned  between  brigand- 
age and  juridical  coercion.  For  the  rest,  it  would  serve  no  useful 
purpose  to  refer  to  the  inductions  of  juridical  archeology  to  convince 
that  only  social  arbitrament  prevents  the  conflicts  of  creditors  and 
debtors  from  descending  to  brigandage.  International  law,  which 
has  with  propriety  been  compared  to  ancient  law,  affords  many 
celebrated  examples.^ 


These  proofs  are  sufficient.  We  see  the  absence  of  law  in 
conflicts  where  there  is  an  absence  of  arbitrament.  We  see  law 
present  in  conflicts  where  arbitrament  is  present.  We  see  that 
law  commences  with  arbitrament,  advances  with  it,  and  recedes 

1  See  Maine,  "Primitive  Forms  of  Legal  Remedies"  [Vol.  II,  p.  586 
seq.  of  this  series]. 

2  Martens,  "Causes  c616bres  du  droit  des  gens",  II,  1. 


490  FACTORS   OF   LEGAL   EVOLUTION  [Part  II. 

with  it.  The  idea  of  law  may  not  therefore  be  present  in  our 
minds  when  the  idea  of  arbitrament  is  absent. 

It  will  perhaps  be  proper  to  consider  the  principal  political  in- 
stitutions as  forms  of  arbitrament.  The  primitive  king  is  not 
only  the  chief  of  an  army,  but  he  is  also  a  judge.  He  convenes 
the  tribunal,  presides  over  it,  compels  the  parties  to  present  them- 
selves, and  often  executes  the  sentence.  The  pope  of  the  Middle 
Ages  is  an  august  arbiter  between  kings  on  one  hand  and  kings  and 
peoples  on  the  other.  After  the  Reformation  the  diplomatic 
congresses  played  a  part  similar  to  that  of  the  papacy.  Never- 
theless, we  must  put  aside  provisionally  this  side  of  our  thesis. 
Domestic  and  political  institutions  respond  less  to  the  idea  of 
arbitration  than  to  the  idea  of  guaranty.  The  notion  that  we 
have  of  them  is  not  connected  with  the  idea  of  arbitration  except 
in  the  measure  that  the  latter  is  connected  with  the  idea  of  guar- 
anty. 

In  return,  the  representation  of  law  and  of  custom  is  only  a 
transformation  of  the  representation  of  arbitrament.  All  legis- 
lation is  only  a  collection  of  arbitral  sentences  which  have  become 
permanent.  It  is  now  known  that  codes  at  their  origin  are  only 
codified  customs.  Reciprocally  intellectual  progress  always  brings 
about  the  moment  when  customs  are  reduced  to  writing.  We  see 
anterior  custom  emerging  in  the  XII  Tables,  in  the  Code  of  Manu, 
in  the  Code  of  Narada,  in  the  Levitical  law,  in  the  Salic  law,  and 
the  law  of  the  Ripuarians  and  of  the  Burgundians.  Even  our 
Code  Civil  is  only  a  transformation  of  the  Justinian  Code  (the 
last  revision  of  the  XII  Tables),  and  the  customs  of  which  the 
written  formula  sprang  from  the  soil,  as  did  also  the  XII  Tables 
and  the  Salic  law.  Without  doubt,  sometimes  the  custom  thus 
reduced  to  writing  is  placed  under  the  sanction  of  religion,  as  is 
the  case  with  oriental  codes ;  sometimes  it  is  under  the  protection 
of  the  civil  power;  but  this  difference  in  ultimate  force  does  not 
imply  any  difference  with  respect  to  origin. 


Procedure,  and  especially  primitive  procedure,  is  to  law  what 
language  is  to  thought.  It  is  not  its  sign,  but  its  appropriate 
expression.  It  suffices  to  examine  the  primitive  forms  of  procedure 
to  become  convinced  that  the  law  is  an  eternal  drama  in  its  sim- 
plicity —  a  dialogue  among  three  persons  —  the  plaintiff,  the  de- 
fendant, and  society  as  the  arbiter.  The  meaning  of  the  dialogue 
is  clear :  it  is  renunciation  by  the  two  rivals  of  their  liberty  to 


Chap.   XX.]  ARBITRAMENT  AND   GUARANTY  491 

exert  their  claims  by  force.  Voluntary  abatement  of  the  quarrel 
and  denunciations  of  vindictiveness  by  appeal  to  sociality  — 
such  is  the  sense  of  the  law.  But  it  is  the  representation  of 
arbitrament  which  induces  this  victorious  reaction  of  sympathetic 
feeling. 

§  2.  The  Idea  of  Guaranty.  The  thought  which  serves  as  point 
of  departure  from  the  idea  of  law  is  the  contrast  between  the 
representation  of  social  ends  and  that  of  conflicts  which  unbridle 
the  competition  of  wants.  What  is  our  rough  mental  idea  of  law  ? 
—  the  effacement  of  tumultuous  individual  claims  in  the  face  of 
social  arbitrament.  There  results  a  double  psychological  and 
sociological  problem.  How  is  individual  assertion  brought  over 
to  the  side  of  sociality  ?  Is  not  every  claim  the  witness  of  a  desire  ? 
Is  it  not  the  effect  of  every  obstacle  which  opposes  itself  to  the 
desire  to  transform  it  into  a  passion?  That  external  social  con- 
straint attended  by  irresistible  physical  power  may  prevent  in- 
dividual assertion  with  the  use  of  violence,  is  conceivable.  But 
that  a  feeling,  an  idea,  a  belief,  may  create  an  internal  constraint, 
where  the  use  of  physical  coercion  is  foreborne,  and  that  this  feel- 
ing may  be  sufficiently  strong  to  compel  the  impulse  of  desire  or 
of  anger  to  yield  —  here  is  a  psychological  mystery. 

According  to  Hobbes  the  submission  of  individual  assertions 
to  social  arbitrament  results  from  a  calculation  of  interest.  Ex- 
perience with  natural  liberty  has  taught  man  at  what  point  he 
imperils  the  enjoyment  of  life  and  the  fruits  of  nature.  The  in- 
terest, the  inclination,  to  choose  always  the  lesser  evil,  teaches 
man  to  prefer  the  evils  of  obedience  to  the  orders  of  a  sovereign 
to  the  evils  of  universal  war.  General  consent  will  therefore 
bring  about  absolute  power  or  will  ratify  it  if  it  be  imposed. 

Psychology  is  not  able  to  adopt  this  analysis.  Everything 
proves  that  man  is  not  an  utilitarian  being.  If,  in  general,  man- 
kind always  chooses  the  lesser  evils,  if  it  necessarily  preferred 
security  to  adventure,  peace  to  war,  the  historical  course  of  events 
would  be  wholly  unintelligible.  Calculation  is  not  the  architect 
of  history.  Man  is  better  and  worse,  less  mediocre  and  more 
absurd  than  the  utilitarians  have  found  him.   .   .   . 

We  must  seek  the  solution  of  the  problem  in  the  tendency 
opposed  to  interest,  in  the  sentiment  of  sympathy  or  altruism. 
If  individuals  or  small  groups  in  conflict  accept  the  arbitrament 
of  the  society  of  which  they  are  part,  it  is  in  the  feeling  and  belief 
that  society  will  espouse  their  cause.  In  a  word,  it  is  because 
the  idea  of  arbitrament  is  associated  with  that  of  guaranty  which 


492  FACTORS   OF    LEGAL   EVOLUTION  [Part   II. 

far  from  being  based  upon  the  idea  and  institution  of  sovereignty, 
as  Hobbes  and  Bentham  thought,  has  for  its  foundation  the 
consciousness  of  an  extensive  and  profound  sympathy  by  virtue 
of  which  the  destiny  of  the  group  is  identified  with  that  of  each 
of  its  members.  In  order  properly  to  understand  the  creation 
and  the  function  of  the  idea  of  guaranty,  and  the  connections 
which  it  sustains  to  the  idea  of  arbitrament,  we  must  return  to 
the  last  idea  and  define  exactly  the  reciprocal  situation  of  the 
parties  which  it  expresses. 

The  naked  idea  of  arbitrament  represents  the  voluntary  sus- 
pension of  a  state  of  war  in  outline.  It  follows  that  arbitrament, 
apart  from  guaranty,  admits  the  possibility  on  the  part  of  each 
still  to  choose  at  any  moment  a  belligerent  solution  of  the  quarrel 
to  the  solution  by  an  arbitral  sentence.  Two  general  facts  re- 
vealed by  the  science  of  legal  evolution  throw  light  upon  the  psy- 
chology of  this  point. 

The  first  of  these  facts  is  that  primitive  procedure  always  com- 
mences with  the  program  of  a  warlike  operation  and  of  a  simulated 
combat.  Some  historians  of  the  law  have  a  tendency  to  regard 
the  combat  as  the  very  spirit  of  the  law.  We  have  already  re- 
marked that  it  is  not  necessary  to  eliminate  entirely  all  the  atti- 
tudes of  a  belligerent  intention.  The  thing  which  is  of  concern 
for  procedure  is  precisely  the  suspension  of  warlike  action.  Among 
the  Kafirs,  according  to  the  testimony  of  the  English  missionary 
Dugmore,^  the  introduction  of  a  lawsuit  is  an  armed  expedition. 
The  plaintiff,  his  kinsmen,  and  his  friends  proceed  armed  to  the 
entrance  of  the  village  where  the  defendant  resides.  There  they 
seat  themselves  in  an  open  place  and  observe  the  effect  produced 
by  their  presence.  This  is  the  signal  for  the  gathering  of  all  the 
adult  male  inhabitants.  They  accordingly  muster  together 
within  speaking  distance.  Then  commence  the  pourparlers  and 
debates  which  are  carried  on  pacifically.  Here  we  have  a  clear 
application  of  what  Darwin  calls  the  principle  of  antithesis  — 
the  belligerent  manifestation  renders  more  conspicuous  the  peace- 
able intention.  Nevertheless,  a  plaintiff  who  comes  in  arms 
demonstrates  that  he  may  fight  if  he  thinks  that  preferable. 

Another  fact  still  more  surprising  to  those  of  our  civilization, 
is  that  courts  of  justice  in  primitive  societies  do  not  give  to  their 
judgments  executive  force.  In  like  manner  the  parties  are  not 
obliged  to  submit  their  disputes.     As  Maine  has  put  it, 

1  See  "Kafir  Laws  and  Customs"  [Vol.  I  of  this  series,  pp.  292, 
302]. 


Chap.   XX.]  ARBITRAMENT  AND   GUARANTY  493 

"  The  dominant  notion  ...  is  not  a  law,  or  a  right,  or  a  sanction, 
or  the  distinction  between  positive  and  natural  law,  or  between  per- 
sons and  things.  The  great  fact  is  that  there  now  exists  an  alter- 
native to  private  reprisals,  a  mode  of  stanching  personal  or  hereditary 
blood-feuds  other  than  slaughter  or  plunder."  ^ 

He  adds : 

"  On  the  whole,  the  effect  of  peace  and  civilization  is  to  diminish 
the  reverence  of  mankind  for  courts  of  justice,  and  the  abiding  sense 
of  their  importance.  We  may  believe  that  the  impressiveness  of  the 
early  courts  of  justice  was  in  part  created  by  what  to  a  modern  eye 
were  their  infirmities.  It  would  seem  that  by  their  side  the  very 
practices  long  survived  which  it  was  their  object  to  suppress.  The 
tenderness  of  early  judicial  procedure  to  immemorial  barbarism  is 
shown  b}^  its  partial  recognition  of  the  remedy  which  we  call  *  dis- 
traint '  and  the  German  '  self  help ',  the  remedy  of  private  reprisals 
on  the  property  of  an  adversary ;  and  there  is  much  significant  evi- 
dence that  the  early  tribunals  had  no  power  of  directly  enforcing  their 
own  decrees.  The  man  who  disobeyed  the  order  of  court  went  out 
of  the  law.  His  kinsmen  ceased  to  be  responsible  for  his  acts,  and 
the  kinsmen  of  those  who  injured  him  became  also  irresponsible ; 
and  thus  he  carried  his  life  in  his  hand.  We  cannot  then  doubt 
that  the  violence  and  bloodshed  which  the  law  licensed  under  certain 
circumstances  were  generally  rife  during  the  infancy  of  courts  of  jus- 
tice, and  that  their  earliest  service  to  mankind  was  to  furnish  an 
alternative  to  savagery,  not  to  suppress  it  wholly.  Their  value  and 
beneficence  were  therefore  probably  all  the  more  conspicuous  while 
as  yet  their  power  was  imperfect  and  their  operation  irregular."  ^ 

The  two  facts  assist  us  in  understanding  another  which  is  gen- 
erally misinterpreted.  Spencer  finds  in  this  institution  further 
proof  of  his  favorite  thesis  "  that  government  is  begotten  of  ag- 
gression and  by  aggression."  ^  .  .  .  A  sociologist  less  dominated  by 
the  spirit  of  his  system,  Fustel  de  Coulanges,  explains  the  judicial 
combat  under  the  Frankish  monarchy  on  religious  grounds.  Ac- 
cording to  the  thought  of  that  age  God  always  would  award 
victory  to  the  most  just  cause.  Neither  of  these  explanations  is 
satisfactory.  It  is  inexact  to  say  that  governments  have  always 
shov/n  the  indifference  to  civil  justice  which  Spencer  charges. 
On  the  other  hand  the  explanation  which  the  Franks  in  the  time 
of  the  Merovingian  empire  gave  to  the   institution  of  judicial 

^  "Early  Law  and  Custom",  cap.  xi  ("Classifications  of  Legal 
Rules"). 

2  Maine,  ibid.  (Fr.  tr.  p.  522). 

3  "The  Man  versus  The  State"  ("The  Sins  of  Legislators"),  Fr.  tr. 
p.  68. 


494  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

combat  does  not  necessarily  express  the  original  idea.  Many 
outgrown  institutions  have  an  entirely  different  explanation  in 
succeeding  generations  than  in  that  of  their  origination.  If  the 
representation  of  a  combat  was  a  necessary  element  of  a  lawsuit, 
and  if  a  court  of  justice  in  primitive  times  was  not  simply  an  ar- 
bitration which  might  be  accepted  or  rejected,  it  is  astonishing 
that  the  function  of  the  arbitrator  did  not  differ  from  that  of  our 
juries  of  honor  and  our  witnesses  in  duels  :  with  the  power  to  say 
if  the  combat  should  take  place,  to  make  the  rules,  and  lastly  to 
determine  what  should  be  the  stake. 

Be  that  as  it  may,  it  is  clear  that  the  naked  idea  of  arbitration 
did  not  and  could  not  bring  about  a  complete  restoration  of  social 
life,  in  part  suspended  by  the  fact  of  litigation,  if  it  were  not  con- 
nected with  another  idea,  the  idea  of  obligatory  submission  of  the 
parties  to  the  arbitration  and  to  the  arbitral  judgment.  But  this 
is  only  the  idea  of  guaranty;  because  it  implies  that  the  entire 
social  body,  or  that  a  notable  part  ©f  it,  for  example,  the  family 
chieftains,  vouch  for  the  arbitrament  and  its  sentence.  .  .  .  This 
guaranty  means  not  protection  or  security  but  solidarity.  The 
concept  of  guaranty  represents  the  intervention  of  one  who 
vouches,  who  answers  for  the  act  of  another.  This  idea  is  more 
precisely  seen  in  the  relation  to  a  debt,  of  an  indorser,  of  an  aval, 
or  of  a  surety.  It  is  connected  with  the  idea  of  arbitrament, 
but  is  not  to  be  confused  with  it. 


How  is  the  idea  of  guaranty  as  thus  conceived  connected  with 
that  of  arbitrament,  and  how  may  it  modify  the  spectacle  of  the 
drama  which  constitutes  the  lawsuit?  In  the  sense  arrived  at, 
as  a  promise  of  security,  the  guaranty  for  each  of  the  parties  will 
consist  of  this,  that  the  other  loses  his  power  of  withdrawing  from 
the  arbitration,  and  especially  loses  the  preference  which  he  may 
have  for  combat  instead  of  a  peaceable  adjustment.  There  is, 
therefore,  a  constraint  which  weighs  on  each  of  the  litigants 
forcing  them  to  present  themselves  before  an  arbitrator  and  to 
submit  to  arbitral  judgment. 

Let  us  examine  the  procedure  of  the  sacramentum.  Each  of 
the  litigants  deposits  in  the  hands  of  the  magistrate  a  certain  sum, 
the  "  aeris  sacramentum."  This  sum  goes  to  the  coffers  of  the 
State.  It  represents  compensation  for  the  time  and  the  trouble 
which  it  takes  to  dispense  justice.  In  the  meantime,  the  deposit 
of  this  sum  is  a  motive  for  each  of  the  parties  to  present  himself 


Chap.  XX.]  ARBITRAMENT  AXD   GUARANTY  495 

before  the  judge  without  any  physical  coercion.  It  is,  therefore,  a 
guaranty,  a  security  for  the  other  party. 

A  frail  and  unsatisfactory  guaranty,  no  doubt !  Likewise, 
societies  do  not  remain  contented  with  it.  The  security  of  the 
litigants  increases  with  all  the  motives,  incentives,  institutions, 
and  forces  which  take  away  from  each  the  power  of  preferring  a 
private  war  to  an  arbitral  judgment.  The  juridicial  effect  of  State 
action  is  the  radical  impossibility  of  reverting  to  private  warfare 
for  the  settlement  of  disputes.  This  is  why  if  we  take  the  word 
guaranty  in  the  sense  indicated,  the  State  is  the  highest  form  of 
guaranty,  and  this  the  reason  also  that  within  the  limits  of  the 
State  itself,  warlike  procedure  tends  to  be  eliminated  by  juridicial 
procedure. 

However,  we  must  not  think  that  upon  the  appearance  of  the 
concept  of  guaranty,  our  notion  of  a  State  immediately  follows. 
Our  idea  of  a  State  is  that  of  a  public  force  superior  to  all  the  re- 
sistance of  individual  wills  which  (1)  prohibits  all  private  persons 
with  disputes  from  resorting  to  any  other  method  of  settlement 
than  arbitral  judgment ;  and  (2)  which  uses  force  in  aid  of  the 
judgments  rendered  by  official  judges  who  constitute  the  tri- 
bunals. But  history  shows  that  this  notion  is  very  recent,  that  it 
has  been  of  very  slow  growth,  and,  we  may  add,  that  its  vitality 
has  been  very  weak.  The  idea  of  a  State  with  a  union  of  a  mili- 
tary magistracy  and  of  a  civil  magistracy  has  been,  as  is  the  case 
of  this  union  itself,  a  matter  of  hesitant  growth.  Before  its  dis- 
covery and  application  nations  have  thought  out  and  resorted  to 
much  more  spontaneous  and  indirect  forms  of  constraint. 

Let  us  pass  from  further  consideration  of  violent  execution 
against  property  by  the  party  who  repudiates  the  authority  of  a 
court  of  justice.  Maine  has  described  at  length  this  procedure 
after  an  examination  of  Germanic  and  Irish  records,  and  he  does 
not  hesitate  to  identify  it  with  brigandage.  It  cannot  be  doubted 
that  such  procedure  is  in  essence  belligerent,  and  that  it  is  the 
negation  of  guaranty.  Let  us  likewise  pass  over  the  benevolent 
function  in  these  matters  of  superstition.  A  striking  type  is  seen 
in  the  strange  institution  discovered  in  the  traditions  of  the  ancient 
Irish  people  and  also  among  the  East  Indians  and  the  Persians, 
known  as  ''  sitting  Dharna  ",  where  the  claimant  fasts  on  the 
defendant.  The  belief  in  a  punishment  of  another  life  may  be 
in  itself  sufficient  to  compel  the  adversary  to  accept  arbitral  judg- 
ment ;  but  this  species  of  guaranty  is  too  individual,  too  indirect, 
and  too  peculiar  to  serve  in  the  life  of  normal  societies. 


496  FACTORS   OF    LEGAL   EVOLUTION  [Part  II. 

Revenge  is  a  form  of  constraint  common  to  modern  international 
law  and  to  primitive  law,  which  is  both  simple  and  natural.  It 
consists  in  breaking  social  relations  with  the  person  who  is  hostile 
to  arbitration.  History  of  primitive  law  shows  that  while  courts 
of  justice  are  not  able  to  impose  their  jurisdiction  on  persons  with 
disputes,  yet  the  individual  who  refuses  to  submit  himself  to  it 
loses  forever  the  power  to  invoke  it.  His  relatives  cease  to  be 
responsible  for  him,  and  the  strength  of  his  arm  becomes  his  sole 
protection.  This  kind  of  ban  clearly  was  a  guaranty  both  for 
litigants  and  for  society. 


Ancient  records  disclose  that  an  individual  in  matters  of  crime, 
if  not  of  property  and  debt,  may  cause  a  community  not  only  to 
outlaw  an  aggressor,  but  also  to  take  up  arms  as  a  whole  in  his 
cause.  Nothing  is  more  instructive  than  the  instance  set  down 
in  "Judges"  in  the  Old  Testament  where  a  Levite  armed  the 
tribes  of  Israel  against  the  Benjamites  who  had  attacked  his 
concubine.  It  is  to  be  observed  that  in  the  time  of  the  Judges, 
Israel,  a  free  republic  of  autonomous  families,  was  unacquainted 
with  a  judicial  organization.  The  "  judge  "  was  only  a  temporary 
military  chieftain  similar  to  the  sirdar  to  whom  the  Turkoman 
tribes  submit  for  the  purposes  of  a  military  expedition. 

(1)  Then  all  the  children  of  Israel  went  out,  and  the  congregation 
was  gathered  together  as  one  man,  from  Dan  even  to  Beersheba, 
with  the  land  of  Gilead,  unto  the  Lord  in  Mizpeh. 


(3)  .  .  .  Then  said  the  children  of  Israel,  tell  us,  how  was  this 
wickedness  ? 

(4)  And  the  Levite,  the  husband  of  the  woman  that  was  slain, 
answered  and  said,  I  came  into  Gibeah  that  belongeth  to  Benjamin, 
I  and  my  concubine,  to  lodge. 

(5)  And  the  men  of  Gibeah  rose  against  me,  and  beset  the  house 
round  about  me  by  night,  and  thought  to  have  slain  me  :  and  my 
concubine  have  they  forced  that  she  is  dead. 

(6)  And  I  took  my  concubine,  and  cut  her  in  pieces,  and  sent 
her  throughout  all  the  country  of  Israel.  .  .  . 

(8)  And  all  the  people  arose  as  one  man  saying,  we  will  not 
any  of  us  go  to  his  tent,  neither  will  we  any  of  us  turn  into  his 
house. 

(19)  And  the  children  of  Israel  rose  up  in  the  morning  and  en- 
camped against  Gibeah. 


Chap.   XX.]  ARBITRAMENT  AND   GUARANTY  497 

(20)  And  the  men  of  Israel  went  out  to  battle  against  Benjamin ; 
and  the  men  of  Israel  put  themselves  in  array  to  fight  against  them  at 
Gibeah. 

A  custom  of  the  Kabyles,  the  "  anaya  ",  enables  us  to  under- 
stand the  idea  of  mutual  solidarity  which  leads  to  the  notion  of 
personal  security. 

"  The  anaya  exactly  resembles  the  passport  and  the  letter  of  safe- 
conduct,  but  with  the  difference  that  the  latter  are  essentially  the 
creations  of  legal  authority  or  constituted  power;  while  any  Kabyle 
may  give  the  anaya.  There  is  this  further  difference  that  to  the  extent 
that  the  moral  support  of  a  passport  or  safe-conduct  may  outw^eigh 
all  police  surveillance,  to  that  extent  the  security  of  the  individual 
who  possesses  the  anaya  exceeds  the  ordinary  protection  of  the  laws 
enjoyed  by  the  citizen. 

"  The  anaya  not  only  gives  protection  against  all  immediate  vio- 
lence to  the  stranger  who  travels  among  the  Kabyles,  but  it  also 
wards  off  temporarily  the  vengeance  of  his  enemies  and  suspends  the 
penalties  of  his  previous  acts.  The  abuses  which  follow  a  too  gen- 
erous extension  of  the  principle  are  held  in  check  in  practice  by  the 
extreme  reserve  of  the  Kabyles  in  giving  it  application. 

"  Far  from  being  prodigal  with  the  anaya  they  limit  it  to  their 
own  friends.  It  is  only  given  once  to  a  fugitive ;  it  is  regarded  as 
invalid  if  it  has  been  purchased;  and,  lastly,  a  false  declaration  of 
anaya  is  punished  by  death. 

*'  In  order  to  prevent  the  fraud  of  false  declaration,  and,  at  the  same 
time,  to  avoid  an  involuntary  infraction  of  its  protection,  the  anaya 
is  generally  manifested  by  a  visible  token.  The  person  who  confers 
anaya  delivers  as  proof  of  his  support  an  object  which  is  well  known 
as  belonging  to  him,  such  as  his  gun,  or  his  staff.  Frequently,  when 
he  has  ground  to  suspect  that  his  proteg^  may  be  molested,  he 
accompanies  him. 

*'  Anaya,  of  course,  receives  consideration  and  has  a  scope  depend- 
ing in  degree  or  extent  on  the  individual  who  gives  it.  Coming 
from  a  Kabyle  subaltern  it  will  be  respected  in  his  village  and  its  en- 
virons ;  coming  from  a  man  of  influence  among  the  neighboring  tribes, 
it  will  be  renewed  by  a  friend  in  another  place  who  substitutes  himself 
as  protector,  and  thus  from  village  to  village.  Given  by  a  marabout 
it  has  no  limits.  Although  an  Arabian  chieftain  is  able  to  extend 
the  benefit  of  his  protection  little  beyond  the  confines  of  his  govern- 
ment, the  safe-conduct  of  a  Kabyle  marabout  extends  even  to  places 
where  his  name  is  unknown.  Whoever  carries  it  may  traverse  the 
length  of  the  Kabyle  country,  whatever  may  be  the  number  of  his 
enemies,  or  the  nature  of  the  grievances  against  him.  He  has  only 
to  present  himself  on  his  journey  successively  to  the  marabouts  of 


498  FACTORS   OF   LEGAL  EVOLUTION  [Part  II. 

the  different  tribes  each  of  whom  will  hasten  to  honor  the  anaya  of 
the  preceding  marabout,  and  to  substitute  his  own  in  exchange. 
Thus,  from  marabout  to  marabout,  the  stranger  will  not  fail  to  achieve 
happily  the  object  of  his  journey. 

"  A  Kabyle  lays  nothing  to  his  heart  more  than  the  inviolability 
of  his  anaya.  It  is  for  him  not  only  a  matter  of  personal  honor,  but 
it  is  also  a  moral  responsibility  of  his  relatives,  his  friends,  his  village, 
and  the  entire  tribe.  Such  a  man  will  not  be  obliged  to  search  out  a 
supporter  to  aid  him  in  inflicting  vengeance  for  a  personal  injury 
which  rouses  up  all  his  compatriots  if  it  is  a  question  of  his  anaya 
which  has  been  violated."  ^ 

If  this  description  is  exact  —  and  we  have  no  reason  to  doubt 
it  —  it  presents  the  case  of  solidary  responsibility  of  which  the 
product  is  the  belief  in  guaranty.  It  is  one  of  those  institutions 
which  attest  the  capacity  of  society  to  create  of  itself  a  relative 
kind  of  order  which  in  particular  has  the  mission  of  warding  off 
private  war,  without  that  complicated  system  of  penal,  legislative, 
executive,  fiscal,  and  military  institutions  which  we  call  the  State. 
Although  we  do  not  question  the  advantages  which  the  State  and 
law  have  conferred  on  mankind,  yet  they  have  confirmed  all  the 
guaranties  which  existed  before  their  appearance.  State  and  law 
have  added  to  them ;  but  they  have  not  created  something  out 
of  nothing.   .   .   . 

1 E.  Daumas,  "Moeurs  et  Coutumes  de  1' Algeria",  2d  ed.,  Paris, 
Hachette,  1855:  cap.  iii,  "La  Kabylie",  p.  224. 


PART   III 
PROCESS   OF  LEGAL   EVOLUTION      • 

Chapter  XXI 
EVOLUTION  OF  SOCIAL  STRUCTURES 

By  Lester  F,  Ward 

Chapter  XXII 
SOCIAL  INTEGRATION  AND  DIFFERENTIATION 

By  Herbert  Spencer 

Chapter  XXIII 

PLANETARY  THEORY  OF  THE  LAW'S  EVOLUTION 
By  John  H.  Wiqmorb 

Chapter  XXIV^ 

DEGENERATIVE  EVOLUTION 

By  Jean  Demoor,  Jean  Massart,  and  Emile  Vanderveldb 

Chapter  XXV 
THE  EVOLUTION  OF  CIVIL  LAW 

By  Raoul  de  la  Grasserie 

Chapter  XXVI 

THE  PERPETUAL  EVOLUTION  OF  LAW 
By  Edmond  Picard 


Chapter  XXI 
EVOLUTION  OF   SOCIAL  STRUCTURES  ^ 

It  is  not  my  intention  to  attempt  any  general  treatment  of  social 
.structures.  That  subject  would  be  altogether  too  large  for  a 
single  paper.  But,  aside  from  that,  there  is  no  need  of  any  such 
treatment.  Probably  nine-tenths  of  all  the  work  done  in  sociol- 
ogy thus  far  is  of  that  kind.  It  consists  chiefly  in  the  description 
of  social  structures  or  in  discussions  of  different  aspects  which  they 
present.  But  thus  far  I  have  met  with  no  work  dealing  with  the 
evolution  of  social  structures.  By  this  I  mean  that  sociologists 
have  been  content  to  take  up  the  social  structures  which  they  find 
actually  in  existence,  and  to  consider  and  examine  them,  often 
going  into  the  minutest  details  and  exhaustively  describing  everyr 
thing  in  any  way  relating  to  them  as  finished  products;  but  no 
one  has  as  yet  attempted  to  explain  what  social  structure  is,  or 
how  these  various  products  have  been  formed. 

As  a  general  proposition,  social  structures  may  be  said  to  be 
human  institutions,  using  botl\  terms  in  the  broadest  sense.  In 
all  grades  and  kinds  of  society  there  are  human  institutions,  and, 
indeed,  society  may  be  said  to  consist  of  them.  If  we  examine 
any  one  of  them,  we  find  that  it  possesses  a  certain  permanence 
and  stability.  It  is  not  a  vague,  intangible  thing  that  will  vanish 
at  a  touch,  but  something  fixed  and  durable.  This  is  because  it 
possesses  a  structure.  A  structure  is  something  that  has  been 
constructed,  and  a  study  of  social  structure  is  the  study  of  a 
process  and  not  a  product.  Our  task,  therefore,  is  not  to  examine 
the  various  products  of  social  construction,  but  to  inquire  into  the 
methods  of  social  construction. 

Our  language,  like  our  ideas,  is  more  or  less  anthropomorphic. 
Man  constructs,  and  the  products  are  called  structures.  He 
takes  the  materials  that  nature  provides,  and  with  them  he  builds 

1  [By  Lester  F.  Ward. 

Reprinted  from  "American  Journal  of  Sociology",  X,  pp.  589-^601, 
604-605.  A  paper  read  at  the  International  Congress  of  Arts  and  Sciences, 
Department  of  Sociology,  St.  Louis,  September,  1904.1 

501 


502  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

whatever  he  needs  —  houses,  vehicles,  boats,  cities.  Each  of 
these  products  is  a  structure,  but  it  is  an  artificial  structure.  The 
human  method  of  constructing  is  an  artificial  method.  This  con- 
sists in  first  forming  in  the  mind  an  ideal  of  the  finished  product, 
and  then  arranging  the  materials  in  such  wise  that  they  will 
realize  that  product.  The  end  is  seen  from  the  beginning.  It  is  a 
final  or  teleological  method.  Nature  also  constructs,  but  the 
method  of  nature  is  just  the  opposite  of  that  of  man.  There  is 
no  foresight,  and  the  materials  are  added  in  small  increments 
until  the  structure  is  completed.  The  method  of  nature  is  a 
differential  or  genetic  method.  All  natural  structures  are  of  this 
class,  and  social  structures  are  natural  structures. 

But  natural  structures  are  not  so  simple  as  might  appear  from 
this  statement.  They  do  not  consist  in  the  mere  mechanical 
apposition  of  the  raw  materials  brought  into  material  contact. 
This  would  produce  only  a  mass,  a  heap,  a  mixture ;  it  would  not 
produce  a  structure.  A  structure  implies  a  certain  orderly  ar- 
rangement and  harmonious  adjustment  of  the  materials,  and 
adaptation  of  the  parts  and  their  subordination  to  the  whole. 
How  does  blind  nature  accomplish  this?  It  does  it  according 
to  a  universal  principle,  and  it  would  be  impossible  to  convey  any 
clear  conception  of  the  process  of  social  structure  without  first 
setting  forth,  at  least  briefly,  the  character  of  this  principle. 

It  is  not  only  in  human  society  that  natural  or  genetic  struc- 
tures are  formed.  The  organic  world  affords  perhaps  the  most 
striking  example  of  the  process,  and  all  organisms  not  only  con- 
sist of  such  structures,  but  are  themselves  organic  structures. 
Every  other  department  of  nature  furnishes  examples,  but  there 
is  one  other  in  which  the  process  is  so  simple  that  it  is  easily 
grasped  by  the  average  mind.  This  is  that  of  astronomy.  Each 
one  of  the  heavenly  bodies  is  a  natural  structure  formed  by  the 
raw  materials  and  blind  forces  of  nature,  and  yet  the  heavenly 
bodies  are  highly  symmetrical  and  perfectly  ordered  structures. 
The  solar  system  and  all  other  star  systems  are  also  such  struc- 
tures, in  which  there  is  perfect  adjustment  of  parts  and  subordina- 
tion of  the  parts  to  the  whole. 

This  last  example  will  serve  a  good  purpose  in  explaining  the  prin- 
ciple, because  we  are  already  familiar  with  the  facts  of  centrifugal 
and  centripetal  forces  which  constitute  the  principle  by  which  the 
systems  are  maintained.  This  is,  in  fact,  the  principle  that  underlies 
all  genetic  structures ;  but  in  other  departments  there  are  many 
other  elements  to  be  considered  which  complicate  the  process.    The 


Chap.  XXI.]  EVOLUTION   OF  SOCIAL  STRUCTURES  503 

principle  may  then  be  stated  in  its  most  general  form  as  the  in- 
teraction of  antagonistic  forces.  In  astronomy  these  are  reduced 
to  the  two  classes,  the  centrifugal  and  centripetal ;  but  in  other 
departments  there  are  many  antagonistic  forces,  which  need  not 
directly  oppose  one  another,  but  which  modify  and  restrain  one 
another  in  a  great  variety  of  ways.  Any  one  of  these  forces  con- 
sidered by  itself  alone  is  in  the  nature  of  a  centrifugal  force.  In 
astronomy  it  is  well  known  that  if  the  centrifugal  forces  were  to 
operate  alone,  the  systems  would  be  immediately  destroyed.  This 
would  be  equally  true  of  any  other  system  and  of  all  natural  struc- 
tures. Any  force  considered  in  and  by  itself  is  destructive,  and 
no  single  force  could  by  any  possibility  construct  a  system.  All 
systems  and  all  structures  are  the  result  of  the  interaction  of  a 
plurality  of  forces  checking  and  restraining  one  another.  A  single 
unopposed  force  can  produce  only  motion  of  translation.  A 
plurality  of  interacting  forces  holds  the  materials  acted  upon 
within  a  limited  area,  and  while  no  matter  or  force  can  be  de- 
stroyed, the  paths  are  shortened  and  converted  from  straight 
lines  into  curves  and  circles,  and  the  bodies  impinged  are  made  to 
revolve  rapidly  in  limited  circuits  and  vortices,  and  to  arrange 
themselves  into  orderly  s}'stems  with  intense  internal  activities. 
This  is  the  fundamental  condition  of  all  organization,  and  natural 
systems  or  genetic  structures  are  organized  mechanisms.  If  we 
apply  it  to  the  bodies  or  substances  which  make  up  the  physical 
world,  we  see  that  the  intensive  internal  activities  which  they  thus 
acquire  constitute  what  we  call  their  properties,  and  the  differences 
in  the  properties  that  different  substances  possess  are  simply  the 
different  activities  displayed  by  their  molecular  components  due 
to  the  differences  in  their  organization.  This  doubtless  applies 
to  chemical  elements  as  well  as  to  inorganic  or  organic  compounds, 
and  many  chemists  regard  even  an  atom  as  a  system  somewhat 
analogous  to  a  solar  system. 

In  the  organic  world  the  process  of  organization,  due  to  suc- 
cessive recompounding  of  the  highest  organic  compounds,  under- 
goes a  higher  degree  of  organization,  and  protoplasm  is  evolved, 
which  is  capable  of  carrying  the  process  on  upward,  and  of  pro- 
ducing the  progressively  higher  and  higher  forms  of  life.  The 
lowest  of  these  forms  consist  of  what  are  called  unicellular  organ- 
isms, which  have  the  power  of  multiplication  or  increase  of  numbers 
but  are  incapable  of  any  higher  development.  They  are  called 
"  protozoans  ",  and  represent  the  initial  stage  in  organic  develop- 
ment.   The  next  step  consists  in  the  organic  union  of  two  or  more, 


504  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

usually  many,  of  these  unicellular  organisms  into  a  multicellular 
organism.  Such  organisms  are  called  "  metazoans ",  and  with 
this  stage  begins  the  most  important  class  of  organic  structures, 
viz.,  tissues.  All  the  organic  forms  with  which  any  but  the  micro- 
scopist  is  familiar  belong  to  this  metazoic  stage  and  present  a  great 
variety  of  tissues,  with  which  everybody  is  more  or  less  familiar. 

I  will  not  go  farther  with  these  illustrations  from  the  inorganic 
and  organic  world ;  but  it  was  essential,  as  will  soon  appear,  to 
go  thus  far.  Social  structures  are  identical,  in  these  fundamental 
aspects,  with  both  inorganic  and  organic  structures.  They  are 
the  products  of  the  interaction  of  antagonistic  forces.  They  also 
pass  from  a  primordial  stage  of  great  simplicity  into  a  secondary, 
more  complex  stage,  and  these  two  stages  are  closely  analogous 
to  the  protozoic  and  metazoic  stages  of  biology.  I  call  them  the 
"  protosocial  "  and  "  metasocial  "  stages,  respectively. 

If  we  set  out  with  the  simple  propagating  couple,  we  soon  have 
the  primitive  family  group  consisting  of  the  parents  and  children. 
The  children  are  of  both  sexes,  and  they  grow  to  maturity,  pair 
off  in  one  way  or  another,  and  produce  families  of  the  second 
order.  These  do  the  same,  resulting  in  families  of  the  third  order, 
and  so  on.  After  a  few  generations  the  group  assumes  consider- 
able size,  and  constitutes  first  a  horde,  and  finally  a  clan.  The 
clan  at  length  becomes  overgrown  and  splits  up  into  several  or 
many  clans,  separating  more  or  less  territorially,  but  usually 
adopting  the  rule  of  exogamy,  and  living  on  comparatively  peace- 
ful terms  at  no  great  distance  from  one  another.  Their  mode  of 
reproduction  is  exactly  analogous  to  the  process  of  reproduction 
by  division  in  the  Protozoa,  and  this  is  what  I  characterize  as  the 
protosocial  stage  in  race-development. 

But  the  multiplication  of  clans  through  continuous  repro- 
duction in  a  geometrical  progression,  coupled  with  the  limits 
prescribed  by  the  food-supply,  results  in  the  wider  and  wider 
separation  of  the  clans,  until  at  length  certain  clans  or  hordes 
will  have  become  so  far  removed  from  the  primary  center  of 
dispersion  as  to  lose  all  connection  with  it.  At  the  low  stage  of 
mental  development  necessary  to  such  a  race  of  beings  scarcely 
as  much  as  a  tradition  would  ultimately  remain  of  the  existence 
of  a  primordial  group  from  which  all  had  descended.  One  clan 
would  keep  budding  off  from  another,  and  moving  out  farther 
and  farther  along  lines  of  least  resistance,  until  a  great  area  cf 
the  earth's  surface  would  at  last  become  thus  sparsely  inhabited 
by  a  multitude  of  clans,  each  knowing  only  the  few  that  are 


Chap.   XXI.]  EVOLUTION   OF   SOCIAL  STRUCTURES  505 

located  nearest  to  it.  As  the  dispersion  takes  place  in  all  direc- 
tions from  the  original  center,  or  as  nearly  so  as  the  configuration 
of  the  country  and  the  nature  of  the  food-supply  will  permit, 
those  migrating  in  opposite  directions  become,  after  a  sufficient 
lapse  of  time,  so  widely  separated  from  one  another  as  to  constitute 
wholly  distinct  peoples.  They  all  have  languages,  but  in  time 
the  local  variations  that  they  naturally  undergo  render  them  to 
all  intents  and  purposes  different  languages,  at  least  so  much  so 
that  if  individuals  of  these  long-separated  groups  should  chance  to 
meet,  they  could  not  understand  one  another.  It  would  be  the 
same  with  their  customs,  beliefs,  and  religion.  They  would  have 
become  in  all  essential  respects  different  races. 

We  will  suppose  that  in  the  end  a  whole  continent  is  thus 
peopled  with  these  alien  hordes  and  clans,  which  would  now  have 
become  innumerable.  The  process  by  which  this  is  brought  about 
is  what  I  have  called  "  social  differentiation."  But  it  cannot 
always  last.  A  new  process  supervenes,  and  the  stage  of  social 
differentiation  is  succeeded  by  a  stage  of  social  integration.  The 
protosocial  stage  closes,  and  the  matasocial  stage  comes  on.  In 
the  protosocial  stage  the  social  structure  is  the  simplest  possible. 
The  horde  or  clan  is  composed  altogether  of  similar  elements. 
The  multiplication  of  such  groups  can  be  nothing  but  a  repetition 
of  similar  groups,  and  there  can  be  no  change  or  variation,  and 
therefore  no  progress  or  structural  advance.  Throughout  the 
protosocial,  as  throughout  the  protozoic,  stage  there  is  no  struc- 
tural development,  no  evolution.  The  differentiation  consists 
simply  in  the  multiplication  of  practically  identical  clans.  Just  as 
organic  evolution  began  with  the  metazoic  stage,  so  social  evolu- 
tion began  with  the  metasocial  stage.  So,  too,  as  the  metazoic 
stage  was  brought  about  through  the  union  of  several  or  many 
unicellular  organisms  into  a  multicellular  organism,  so  the  meta- 
social stage  was  brought  about  by  the  union  of  two  or  more  simple 
hordes  or  clans  into  a  compound  group  of  amalgamated  hordes 
or  clans.  In  the  organic  world  the  result  was  the  formation  of 
tissues,  the  multiplication  of  organs,  and  the  integration  of  the 
parts  thus  united  into  complete  organisms.  In  the  social  w^orld 
the  result  was  the  formation  of  what  may  be  properly  called  social 
tissues,  the  multiplication  of  social  organs,  and  the  integration 
of  all  the  elements  thus  combined  into  peoples,  states,  and  nations. 
The  study  of  social  structure  properly  begins  here;  but  social 
structure  would  be  wholly  unintelligible  without  a  clear  idea  of 
both  the  principle  and  the  materials  of  social  structure.     The 


506  PROCESS   OF   LEGAL  EVOLUTION  [Part  IH. 

principle  is  the  interaction  of  antagonistic  forces,  and  the  materials 
are  the  primitive  hordes  and  clans  brought  into  existence  by  the 
process  of  social  differentiation.  We  have  now  to  descend  from 
generalities  and  inquire  into  the  specific  character  of  social  inte- 
gration. A  great  area  has  become  inhabited  by  innumerable 
human  groups,  but  there  is  no  organic  connection  between  them. 
Each  group  lays  claim  to  a  certain  area  of  territory,  but  they  begin 
to  encroach  upon  one  another.  Two  groups  thus  brought  into 
proximity  may  be,  and  usually  are,  utterly  unknown  to  each 
other.  The  mutual  encroachment  is  certain  to  produce  hos- 
tility. War  is  the  result,  and  one  of  the  two  groups  is  almost 
certain  to  prove  the  superior  warrior  and  to  conquer  the  other. 
The  first  step  in  the  whole  process  is  the  conquest  of  one  race  by 
another.  This  is  the  beginning  of  the  struggle  of  races  of  which 
we  have  all  heard  so  much.  Most  persons  regard  this  struggle 
as  the  greatest  of  all  human  misfortunes.  But  the  sociologist 
studies  the  effects  of  race-struggle  and  finds  in  it  the  basis  of  his 
science.  The  first  effect  is  the  subjugation  of  one  race  by  another. 
The  second  effect  is  the  establishment  of  a  system  of  caste,  the 
conquering  race  assuming  the  role  of  a  superior  or  noble  caste, 
and  the  conquered  race  being  relegated  to  the  position  of  an  in- 
ferior or  ignoble  caste.  The  greater  part  of  the  conquered  race 
is  enslaved,  and  the  institution  of  slavery  begins  here.  The 
slaves  are  compelled  to  work,  and  labor  in  the  economic  sense 
begins  here.  The  enslavement  of  the  producers  and  the  compel- 
ling them  to  work  was.  the  only  way  in  which  mankind  could  have 
been  taught  to  labor,  and  therefore  the  whole  industrial  system 
of  society  begins  here. 

The  conquerors  parcel  out  the  lands  to  the  leading  military 
chieftains,  and  the  institution  of  private  ownership  of  land  has 
its  origin  at  this  stage.  Success  in  war  is  attributed  to  the  favor 
of  the  gods,  and  those  who  pretend  to  be  in  communication  with 
the  gods  are  the  most  favored  of  men.  They  are  installed  in  high 
places  and  made  the  recipients  of  large  emoluments.  From  the 
condition  of  sorcerers,  soothsayers,  and  medicine-men  they  are 
raised  to  that  of  a  powerful  priesthood.  Henceforth  they  consti- 
tute a  leisure  class,  and  this  is  the  origin  of  that  most  important 
human  institution.  Mutual  race-hatred  results  in  perpetual 
uprisings,  requiring  constant  suppression  by  the  military  power. 
This  is  costly,  dangerous,  and  precarious,  and  wisdom  soon  dic- 
tates a  form  of  systematic  treatment  for  offenders.  Personal 
regulation  gradually  gives  way  to  general  rules,  and  these  ulti- 


Chap.   XXI.]  EVOLUTION   OF   SOCIAL  STRUCTURES  507 

mately  take  the  form  of  laws.  Government  by  law  gradually 
succeeds  government  by  arbitrary  military  commands.  The  effect 
of  this  is  nothing  less  than  the  origin  of  the  state.  The  state  is 
the  most  important  of  all  human  institutions.  There  is  no  institu- 
tion about  which  so  much  has  been  written,  and  even  in  our  day, 
volumes  are  yearly  appearing  vainly  endeavoring  to  explain  the 
origin  and  nature  of  the  state.  They  all  completely  miss  the  mark, 
and  flounder  in  a  sea  of  vague  and  w^orthless  speculation.  The 
state  is  a  spontaneous  genetic  product,  resulting,  like  all  other 
social  structures,  from  the  interaction  of  antagonistic  forces, 
checking  and  restraining  one  another  and  evolving  a  great  social 
structure  destined  to  become  the  condition  to  all  social  progress. 
Under  the  state  there  are  recognized  both  rights  and  duties. 
So  long  as  the  law  is  not  violated  there  is  liberty  of  action,  and 
the  foundations  of  human  freedom  are  laid. 

Another  great  institution  takes  its  rise  at  this  stage,  viz.,  that 
of  property.  With  the  establishment  of  the  state,  with  its  recog- 
nition of  rights  under  the  law,  it  becomes  possible,  as  never  before, 
to  enjoy  midisturbed  any  object  that  has  been  rightfully  acquired. 
Such  an  object  then  becomes  property,  and  belongs  to  its  owner 
even  if  not  in  his  immediate  possession.  He  need  no  longer  fear 
that,  unless  it  is  constantly  watched  and  forcibly  defended,  it 
will  be  wrested  from  him  by  others  who  have  no  other  claim  than 
that  of  superior  strength.  The  immense  sociological  importance 
of  this  cannot  be  too  strongly  emphasized.  For  a  man's  posses- 
sions need  no  longer  be  confined  to  what  he  can  himself  consume 
or  enjoy ;  they  may  greatly  exceed  his  wants,  or  consist  of  objects 
for  which  he  has  no  need,  but  which  are  needed  by  others  who 
have  other  things  that  he  does  want  and  for  which  he  can  ex- 
change them.  He  can  manufacture  a  single  product  many  thou- 
sand times  in  excess  of  his  needs,  and  exchange  it  for  a  great 
variety  of  other  objects  similarly  produced  in  excess  by  others. 
We  thus  see  that  the  institution  of  private  property  was  the 
foundation  at  once  of  all  trade  and  business  and  also  of  the  divi- 
sion of  labor.  But  property  was  not  possible  until  the  state  was 
established,  whose  most  important  function  was  at  the  outset 
and  still  remains  the  protection  of  the  citizen  in  his  proprietary 
rights. 

With  the  establishment  of  the  state,  or  even  before,  there  begins 
a  differentiation  of  social  tissues.  The  analogy  with  organic- 
tissues  is  here  particularly  clear  and  useful  in  helping  us  to  under- 
stand the  process.     All  well-informed  persons  are  now  familiar 


508  PROCESS  OF  LEGAL  EVOLUTION  [Part  III. 

with  the  fact  that  the  tissues  of  all  developed  animals  consist  of  an 
ectoderm,  or  outer  layer,  an  endoderm,  or  inner  layer,  and  a  meso- 
derm, or  intermediate  layer,  and  that  out  of  one  or  the  other  of 
these  fundamental  tissues  all  the  organs  of  the  body  are  formed. 
Now,  the  evolution  of  the  metasocial  body  is  exactly  parallel  to 
this.  The  conquering  race,  or  superior  class  or  caste,  represents 
the  social  ectoderm ;  the  conquered  race,  or  inferior  class  or  caste, 
represents  the  social  endoderm.  The  social  mesoderm  is  not  so 
simple,  but  it  is  not  less  real.  It  is  one  of  the  most  important 
consequences  of  race-amalgamation. 

Within  the  social  body,  under  the  regime  of  law  and  the  state, 
there  is  intense  activity.  Compelled  by  mutually  restraining 
forces  to  remain  in  one  place  and  not  fly  off  on  various  tangents, 
the  vigorous  elements  of  the  new  complex  society  display  a  corre- 
sponding intensity  in  their  inner  life.  Only  a  small  part  of  the 
superior  race  can  hold  high  places  under  the  state,  and  the  great 
majority  of  them  are  obliged  to  support  themselves  by  their  own 
efforts.  Neither  are  all  the  members  of  the  subject  race  held  in 
bondage ;  a  large  percentage  remain  free,  and  must  .of  course 
maintain  themselves  by  some  form  of  useful  activity.  These 
two  classes  are  too  nearly  alike  in  their  social  standing  to  continue 
long  socially  and  economically  independent.  It  must  be  remem- 
bered that  both  races  have  descended  from  the  same  original 
stock,  although  they  do  not  know  it.  There  is  therefore  no  es- 
sential difference  in  their  general  character.  The  superiority 
by  which  one  was  able  to  conquer  the  other  may  have  been  due  to 
a  variety  of  more  or  less  accidental  causes.  It  does  not  render 
them  superior  in  other  respects.  The  individuals  of  both  races 
will  differ  greatly  in  character  and  ability,  and  members  of  the 
subject  race  will  often  excel  those  of  the  dominant  race  in  certain 
respects.  They  are  all  struggling  together  for  subsistence,  and  it 
is  inevitable  that  their  interests  will  often  be  the  same.  Race- 
prejudice  will  thus  gradually  give  way,  and  in  the  general  indus- 
trial strife  there  is  a  greater  and  greater  commingling  and  co- 
operation. There  thus  arises  a  large  industrial  class  made  up 
of  these  two  elements,  and  this  class  may  be  appropriately  called 
the  "  social  mesoderm.''  This  industrial,  commercial,  or  business 
class  is  the  real  life  of  the  society.  The  ruling  class  becomes 
more  and  more  dependent  upon  it  for  the  supply  of  the  resources 
of  the  state,  and  gradually  the  members  of  this  class  acquire  more 
or  less  influence  and  power. 

As  time  goes  on,  the  situation  is  accepted  by  all,  and  race- 


CiL\P.   XXI. J  EVOLUTION   OF   SOCIAL  STRUCTURES  509 

prejudices  give  way.  The  interaction  of  all  classes  increases  and 
a  general  process  of  assimilation  sets  in,  tending  toward  a  com- 
plete blending  of  all  classes  into  a  single  homogeneous  group. 
Intermarriage  among  the  members  of  the  two  races  grows  more 
and  more  frequent,  until  ultimately  nearly  or  quite  all  the  members 
of  the  society  have  the  blood  of  both  races  in  their  veins.  The 
final  outcome  of  it  all  is  the  production  of  a  people.  The  people 
thus  evolved  out  of  heterogeneous  elements  is  different  from  either 
of  the  races  producing  it.  It  is  a  new  creation,  the  social  syn- 
thesis of  the  race-struggle,  and  as  homogeneous  in  its  consti- 
tution as  was  either  of  its  original  components. 

Only  one  more  step  in  this  process  of  evolution  of  social  struc- 
tures is  possible  on  the  simple  plane  on  which  we  have  been  trac- 
ing it,  and  that  is  the  making  of  a  nation.  The  new  people  that 
has  been  developed  now  begin  to  acquire  an  attachment,  not 
only  for  one  another  as  members  of  the  society,  but  also  for  the 
place  of  their  birth  and  activity.  They  realize  that  they  are  a 
people  and  that  they  have  a  country,  and  there  arises  a  love  of 
both  which  crystallizes  into  the  sentiment  that  we  call  patriotism. 
All  are  now  ready  to  defend  their  country  against  outside  powers, 
and  all  are  filled  with  what  we  know  as  the  national  sentiment. 
In  a  word,  out  of  the  prolonged  struggle  of  two  primarily  antago- 
nistic and  hostile  races  there  has  at  last  emerged  a  single  cemented 
and  homogeneous  nation. 

We  thus  have  as  the  natural  and  necessary  result  of  the  con- 
quest and  subjugation  of  one  primitive  group  by  another  no  less 
than  fourteen  more  or  less  distinct  social  structures  or  human 
institutions.  These  are  in  the  order  in  which  they  are  developed  : 
(1)  the  system  of  caste ;  (2)  the  institution  of  slavery ;  (3)  labor 
in  the  economic  sense ;  (4)  the  industrial  system ;  (5)  landed 
property ;  (6)  the  priesthood ;  (7)  a  leisure  class ;  (8)  govern- 
ment bylaw;  (9)  the  state;  (10)  political  liberty ;  (11)  prop- 
erty ;  (12)  a  business  class ;  (13)  a  people ;  (14)  a  nation. 

The  first  two  of  these  social  structures  are  not  now  regarded 
as  useful,  but  they  were  useful  when  formed  and,  indeed,  the 
essential  conditions  to  all  the  subsequent  ones.  The  priesthood 
and  the  leisure  class  are  now  no  longer  necessary  to  a  high  civiliza- 
tion, but  the\  still  exist,  and  under  proper  limitations  they  have 
an  important  function.  All  institutions  undergo  great  modifica- 
tions and  some  are  completely  transformed  with  time. 

The  case  considered  is  that  of  the  union  of  two  primitive  groups 
which  occupied  at  the  outset  the  same  social  position,  and  that  the 


510  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

lowest  known.  It  may  be  called  a  case  of  simple  social  assimi- 
lation. That  there  have  been  many  such  cases  there  is  no  doubt, 
but  no  such  could  be  observed  by  enlightened  man,  for  the  simple 
reason  that  no  such  primitive  groups  exist,  or  have  existed  since 
there  have  been  enlightened  men.  This  may  sound  strange 
when  we  constantly  hear  of  existing  hordes  and  clans.  But  I 
make  bold  to  affirm  that  none  of  the  hordes  or  clans  now  existing 
are  at  all  primitive.  Nay,  I  go  farther  and  maintain  that  all 
hordes  and  clans,  all  tribes,  and  all  races  are  equally  old.  The 
lowest  race  on  the  earth  is  as  old  as  the  most  enlightened  nation. 
There  is  no  escape  from  this  except  in  the  old  exploded  theological 
doctrine  of  special  creation.  The  theory  of  polygenism  is  a  form 
of  that  doctrine  applied  to  human  races.  To  admit  it  involves 
the  surrender  of  the  whole  doctrine  of  evolution.  If  man  has 
evolved  from  a  lower  prehuman  stage,  he  emerged  as  man  at  a 
given  time,  and  all  human  races  have  descended  from  that  one 
truly  primitive  type.  All  human  races  are  therefore  equally  old. 
The  differences  among  them  are  not  at  all  due  to  the  time  it  has 
required  to  reach  their  present  state,  because  all  have  had  the 
same  time  in  which  to  do  this.  •  The  differences  are  wholly  due 
to  the  different  conditions  under  which  they  have  been  placed  and 
in  conformity  with  which  they  have  developed. 

There  has,  of  course,  been  a  great  variety  of  influences  at  work 
in  determining  the  direction  and  degree  of  development  of  the 
races  of  men,  but  there  is  one  element  that  has  had  more  to  do 
with  this  than  any  other,  or  perhaps  than  all  others  combined; 
that  is  the  element  with  which  we  have  been  dealing,  viz.,  the 
element  of  social  assimilation.  When  we  realize  that  all  human 
races  are  equally  old,  we  can  readily  see  that  all  cases  of  simple 
assimilation,  such'  as  the  one  sketched,  must  have  occurred  far 
back  in  the  early  history  of  man.  The  period  of  social  differentia- 
tion may  have  been  very  long.  It  may  have  occupied  half  cf  the 
two  hundred  thousand  years  that  are  commonly  assigned  to  man 
on  the  earth.  But  whatever  its  length,  that  period  is  long  past, 
and  the  period  of  social  integration  has  been  at  least  as  long. 
All  the  cases  of  simple  assimilation  had  run  their  course  ages 
before  there  were  any  records  of  any  kind,  and  human  history 
acquaints  us  only  with  types  of  a  far  higher  order. 

In  other  words,  the  only  cases  of  which  we  have  any  actual 
knowledge  are  cases  of  compound  social  assimilation.  Compound 
assimilation  results  when  peoples  or  nations  that  have  already 
been  formed  in  the  manner  described  out  of  lower  social  elements 


Chap.   XXI.]  EVOLUTION   OF   SOCIAL  STRUCTURES  511 

again  amalgamate  on  a  higher  plane  and  repeat  the  process. 
When  one  perfectly  integrated  nation  conquers  and  subjugates 
another,  the  same  steps  have  to  be  taken  as  in  the  case  of  simple 
groups.  The  struggle  is  as  much  more  intense  as  it  is  higher  in 
the  scale  of  social  structure.  But  the  new  structures  developed 
through  it,  although  they  have  the  same  names  and  the  same 
general  character,  become,  when  formed,  more  powerful  and 
capable  of  accomplishing  much  more.  The  new  society  is  of  a 
higher  grade  and  a  more  potent  factor  in  the  world.  The  new 
state,  the  new  people,  the  new  nation,  are  on  a  higher  plane,  and 
a  long  step  is  taken  tow^ard  civilization. 

But  all  the  nations  of  which  history  tells  us  anything  have 
undergone  much  more  still  than  two  social  assimilations.  Most 
of  them  have  undergone  many,  and  represent  highly  complex 
structures.  With  every  fresh  assimilation  they  rise  in  the  scale 
of  civilization.  W^hat  they  acquire  is  greater  and  greater  social 
efficiency,  and  the  principal  differences  between  races,  peoples,  and 
nations  are  differences  in  the  degree  of  social  efficiency.  Not  only 
are  the  same  social  structures  acquired  in  the  first  assimilation 
greatly  increased  and  strengthened,  but  a  large  number  of  other, 
more  or  less  derivative,  but  highly  socializing,  structures  are 
added.  The  system  of  law,  which  was  at  first  only  a  sort  of 
police  regulation,  becomes  a  great  system  of  jurisprudence.  Gov- 
ernment, which  at  first  had  but  one  branch,  viz.,  the  executive, 
acquires  a  judicial  and  finally  a  legislative  branch.  The  state 
becomes  a  vast  systematized  organization.  Industry,  which  at 
the  beginning  consisted  wholly  of  slave  labor  under  a  master,  and 
later  included  the  simplest  forms  of  trade,  develops  into  a  system 
of  economic  production,  exchange,  transportation,  and  general 
circulation.  Property,  which  primarily  meant  only  oxen,  spears, 
bows  and  arrows,  and  primitive  agricultural  implements,  now 
takes  varied  forms,  the  most  important  being  those  symbols  of 
property  which  go  by  the  name  of  money.  Under  the  protection 
of  the  state,  wealth  becomes  possible  to  a  large  number  who 
possess  the  thrift  to  acquire  it,  and  this  takes  the  form  of  capital, 
which  is  the  condition  to  all  industrial  progress  and  national 
wealth. 

The  existence  of  wealth  —  i.e.,  of  a  large  number  of  wealthy 
citizens  —  creates  another  kind  of  leisure  class,  and  many,  freed 
from  the  trammels  of  toil,  turn  their  attention  to  various  higher 
pursuits.  Art  and  literature  arise,  and  civilizing  and  refining 
influences   begin.     Voluntary  organizations  of  many  kinds,   all 


512  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

having  different  objects,  are  formed.  Besides  innumerable  busi- 
ness combinations  and  corporations,  there  spring  up  associations 
for  mutual  aid,  for  intellectual  improvement,  for  social  inter- 
course, for  amusement  and  pleasure,  and  also  eventually  for 
charitable  and  benevolent  purposes.  Educational  systems  are 
established,  and  the  study  of  human  history,  of  art  and  letters, 
and  finally  of  nature,  is  undertaken.  The  era  of  science  at  last 
opens,  invention  and  discovery  are  stimulated,  and  the  conquest 
of  nature  and  the  mastery  of  the  world  begin. 

Every  one  of  these  civilizing  agencies  is  a  social  structure,  and 
all  of  them  are  the  products  of  the  one  universal  process.  They 
represent  the  products  of  that  intensive  activity  which  results 
from  the  primary  clash  and  conflict  of  the  social  forces  in  the 
fierce  grapple  of  hostile  hordes  and  clans,  and  the  far  fiercer 
battles  of  developed  nations  bent  on  each  other's  conquest  and 
subjugation.  To  see  all  this  one  has  only  to  read  the  history  of 
any  of  the  great  nations  of  the  world  that  are  leading  the  civiliza- 
tion of  today.   .   .   . 

.  .  .  We  have  seen  how  social  structures  are  formed.  The 
spontaneous  products  of  a  great  cosmical  law,  they  could  not 
be  other  than  thoroughly  organized,  firm,  compact,  and  durable 
mechanisms,  comparable  to  organic  structures  —  tissues,  organs, 
organisms.  This  is  the  most  important  lesson  taught  by  the 
science  of  sociology.  If  all  the  world  could  learn  it,  the  greater 
part  of  all  political  and  social  failures  would  be  prevented.  It 
would  dispel  at  one  blow  all  the  false  notions  so  widely  current 
relative  to  the  alteration,  abolition,  or  overthrow  of  any  human 
institution.  As  human  institutions  are  the  products  of  evolution, 
they  cannot  be  destroyed,  and  the  only  way  they  can  be  modified 
is  through  this  same  process  of  evolution.  Universal  acquaintance 
with  the  causes,  the  laws,  and  the  natural  history  of  social  struc- 
tures, and  with  their  consequent  durability,  permanence,  and 
indestructibility,  would  produce  a  complete  change  in  all  the 
prevailing  ideas  of  reform,  and  the  superficial  reformers,  however 
well  meaning,  would  forthwith  abandon  their  chimerical  schemes, 
and  set  about  studying  the  science  of  society  with  a  view  t3  the 
adoption  of  legitimate  means  for  the  direction  of  the  course  of 
social  evolution  toward  the  real  and  possible  modification  and 
perfecting  of  social  structures.  For  structures  are  easily  modified 
by  appropriate  methods.  They  are  of  themselves  always  under- 
going changes.  It  is  in  this  that  social  progress  wholly  consists. 
But  the  integrity  of  the  structures  must  not  be  disturbed.     They 


Chap.   XXI.]  EVOLUTION   OF  SOCIAL  STRUCTURES  513 

must  remain  intact  and  be  permitted,  or  even  caused,  to  change 
in  the  desired  direction,  and  to  be  ultimately  transformed  into 
the  ideal  human  institutions  that  a  progressive  age  demands. 
A  condition  of  social  statics  may  thus  be  converted  into  one  of 
social  dynamics.  All  social  structures  taken  together  constitute 
the  social  order.  The  problem  is  to  inaugurate  a  condition  cf 
social  progress.  This  cannot  be  done  by  disturbing  the  social 
order.  Order  is  the  condition  to  progress,  and  progress  con- 
sists in  setting  up  dynamic  activities  in  the  social  structures 
themselves.  A  structure  represents  a  state  of  equilibrium,  but 
it  is  never  a  perfect  equilibrium,  and  the  conversion  of  this  partial 
equilibrium  into  a  moving  equilibrium,  provided  it  moves  in  the 
right  direction,  is  social  progress. 


Chapter  XXII 

SOCIAL   INTEGRATION   AND   DIFFERENTIATION  ^ 
I.   Social  Growth.  |  II.   Social  Structures. 

I.   Social  Growth 

§1.  Societies,  like  living  bodies,  begin  as  germs  —  originate 
from  masses  which  are  extremely  minute  in  comparison  with  the 
masses  some  of  them  eventually  reach.  That  out  of  small  wander- 
ing hordes  have  arisen  the  largest  societies,  is  a  conclusion  not  to 
be  contested.  The  implements  of  pre-historic  peoples,  ruder  even 
than  existing  savages  use,  imply  absence  of  those  arts  by  which  alone 
great  aggregations  of  men  are  made  possible.  Religious  cere- 
monies that  survived  among  ancient  historic  races,  pointed  back 
to  a  time  when  the  progenitors  of  those  races  had  flint  knives, 
and  got  fire  by  rubbing  together  pieces  of  wood ;  and  must  have 
lived  in  such  small  clusters  as  are  alone  possible  before  the  rise 
of  agriculture. 

The  implication  is  that  by  integrations,  direct  and  indirect, 
there  have  in  course  of  time  been  produced  social  aggregates  a 
million  times  in  size  the  aggregates  which  alone  existed  in  the 
remote  past.  Here,  then,  is  a  growth  reminding  us,  by  its  degree, 
of  growth  in  living  bodies. 

§  2.  Between  this  trait  of  organic  evolution  and  the  answering 
trait  of  super-organic  evolution,  there  is  a  further  parallelism  : 
the  growths  in  aggregates  of  different  classes  are  extremely  various 
in  their  amounts. 

Glancing  over  the  entire  assemblage  of  animal  types,  we  see 
that  the  members  of  one  large  class,  the  Protozoa,  rarely  increase 
beyond  that  microscopic  size  with  which  every  higher  animal 
begins.  Among  the  multitudinous  kinds  of  Ccelenterata,  the 
masses  range  from  that  of  the  small  Hydra  to  that  of  the  large 

^  [By  Herbert  Spencer. 

Reprinted  from  "The  Principles  of  Sociology",  Vol.  I,  pt.  ii,  caps,  iii, 
iv,  §§  224-233.     The  sections  are  here  renumbered.] 

514 


Chap.  XXII.]  INTEGRATION   AND   DIFFERENTIATION  515 

Medusa.  The  annulose  and  molluscous  types,  respectively,  show 
us  immense  contrasts  between  their  superior  and  inferior  members. 
And  the  vertebrate  animals,  much  larger  on  the  average  than  the 
rest,  display  among  themselves  enormous  differences. 

Kindred  unlikenesses  of  size  strike  us  when  we  contemplate 
the  entire  assemblage  of  human  societies.  Scattered  over  many 
regions  there  are  minute  hordes  —  still  extant  samples  of  the 
primordial  type  of  society.  We  have  Wood-Veddahs  living 
sometimes  in  pairs,  and  only  now  and  then  assembling ;  we  have 
Bushmen  wandering  about  in  families,  and  forming  larger  groups 
but  occasionally;  we  have  Fuegians  clustered  by  the  dozen  or 
the  score.  Tribes  of  Australians,  of  Tasmanians,  of  Andamanese, 
are  variable  within  the  limits  of  perhaps  twenty  to  fifty.  And 
similarly,  if  the  region  is  inhospitable,  as  with  the  Esquimaux,  or 
if  the  arts  of  life  are  undeveloped,  as  with  the  Digger-Indians, 
or  if  adjacent  higher  races  are  obstacles  to  growth,  as  with  Indian 
Hill-tribes  like  the  Juangs,  this  limitation  to  primitive  size  con- 
tinues. Where  a  fruitful  soil  affords  much  food,  and  where  a 
more  settled  life,  leading  to  agriculture,  again  increases  the  supply 
of  food,  we  meet  with  larger  social  aggregates :  instance  those  in 
the  Polynesian  Islands  and  in  many  parts  of  Africa.  Here  a 
hundred  or  two,  here  several  thousands,  here  many  thousands, 
are  held  together  more  or  less  completely  as  one  mass.  And  then 
in  the  highest  societies,  instead  of  partially-aggregated  thousands, 
we  have  completely-aggregated  millions. 

§  3.  The  growths  of  individual  and  social  organisms  are  allied 
in  another  respect.  In  each  case  size  augments  by  two  processes, 
which  go  on  sometimes  separately,  sometimes  together.  There 
is  increase  by  simple  multiplication  of  units,  causing  enlargement 
of  the  group ;  there  is  increase  by  union  of  groups,  and  again  by 
union  of  groups  of  groups.  The  first  parallelism  is  too  simple 
to  need  illustration ;  but  the  facts  which  show  us  the  second  must 
be  set  forth. 

Organic  integration,  treated  of  at  length  in  the  Principles  of 
Biology,^  must  be  here  summarized  to  make  the  comparison  in- 
telligible. The  compounding  and  re-compounding,  as  shown  us 
throughout  the  vegetal  kingdom,  may  be  taken  first,  as  most 
easily  followed.  Plants  of  the  lowest  orders  are  minute  cells, 
some  kinds  of  which  in  their  myriads  color  stagnant  waters, 
and  others  compose  the  green  films  on  damp  surfaces.  By  cluster- 
ings of  such  cells  are  formed  small  threads,  discs,  globes,  etc.; 

1  §§  180-211. 


516  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

as  well  as  amorphous  masses  and  laminated  masses.  One  of  these 
last  (called  a  thallus  when  scarcely  at  all  differentiated,  as  in  a 
sea-weed,  and  called  a  frond  in. cryptogams  that  have  some  struc- 
ture), is  an  extensive  but  simple  group  of  the  protophytes  first 
named.  Temporarily  united  in  certain  low  cryptogams,  fronds 
become  permanently  united  in  higher  cryptogams :  then  forming 
a  series  of  foliar  surfaces  joined  by  a  creeping  stem.  Out  of  this 
comes  the  phsenogamic  axis  —  a  shoot  with  its  foliar  organs  or 
leaves.  That  is  to  say,  there  is  now  a  permanent  cluster  of  clusters. 
And  then,  as  these  axes  develop  lateral  axes,  and  as  these  again 
branch,  the  compounding  advances  to  higher  stages.  In  the 
animal  kingdom  the  like  happens;  though  in  a  less  regular  and 
more  disguised  manner.  The  smallest  animal,  like  the  smallest 
plant,  is  essentially  a  minute  group  of  living  molecules.  There 
are  many  forms  and  stages  sKowing  us  the  clustering  of  such 
smallest  animals.  Sometimes,  as  in  the  compound  Vorticellcs 
and  in  the  Sponges,  their  individualities  are  scarcely  at  all  masked ; 
but  as  evolution  of  the  composite  aggregate  advances,  the  individ- 
ualities of  the  component  aggregates  become  less  distinct.  In 
some  Ccelenterata,  though  they  retain  considerable  independence, 
which  they  show  by  moving  about  like  AmoehoB  when  separated, 
they  have  their  individualities  mainly  merged  in  that  of  the 
aggregate  formed  of  them :  instance  the  common  Hydra.  Ter- 
tiary aggregates  similarly  result  from  the  massing  of  secondary 
ones.  Sundry  modes  and  phases  of  the  process  are  observable 
among  coelenterate  types.  There  is  the  branched  hydroid,  in 
which  the  individual  polypes  preserve  their  identities,  and  the 
polypidom  merely  holds  them  together;  and  there  are  forms, 
such  as  Velella,  in  which  the  polypes  have  been  so  modified  and 
fused,  that  their  individualities  were  long  unrecognized.  Again, 
among  the  Molluscoida  we  have  feebly-united  tertiary  aggregates 
in  the  Salpidcs;  while  we  have,  in  the  Botryllidce,  masses  in  which 
the  tertiary  aggregate,  greatly  consolidated,  obscures  the  in- 
dividualities of  the  secondary  aggregates.  So,  too,  is  it  with 
certain  annuloid  types ;  and,  as  I  have  sought  to  show,  with  the 
Annulosa  generally.^ 

Social  growth  proceeds  by  an  analogous  compounding  and 
re-compounding.  The  primitive  social  group,  like  the  primi- 
tive group  of  living  molecules  with  which  organic  evolution  begins, 
never  attains  any  considerable  size  by  simple  increase.  Where, 
as  among  Fuegians,  the  supplies  of  wild  food  yielded  by  an  in- 
1  "Principles  of  Biology",  §  205. 


Chap.   XXII. J  INTEGRATION   AND   DIFFERENTIATION  517 

clement  habitat  will  not  enable  more  than  a  score  or  so  to  live  in 
the  same  place  —  where,  as  among  Andamanese,  limited  to  a 
strip  of  shore  backed  by  impenetrable  bush,  forty  is  about  the 
number  of  individuals  who  can  find  prey  without  going  too  far 
from  their  temporary  abode  —  where,  as  among  Bushmen,  wander- 
ing over  barren  tracts,  small  hordes  are  alone  possible,  and  even 
families  "  are  sometimes  obliged  to  separate,  since  the  same  spot 
will  not  afford  sufficient  sustenance  for  all  " ;  we  have  extreme 
instances  of  the  limitation  of  simple  groups,  and  the  formation 
of  migrating  groups  when  the  limit  is  passed.  Even  in  tolerably 
productive  habitats,  fission  of  the  groups  is  eventually  necessitated 
in  a  kindred  manner.  Spreading  as  its  number  increases,  a  prim- 
itive tribe  presently  reaches  a  diffusion  at  which  its  parts  become 
incoherent ;  and  it  then  gradually  separates  into  tribes  that  be- 
come distinct  as  fast  as  their  continually-diverging  dialects  pass 
into  different  languages.  Often  nothing  further  happens  than 
repetition  of  this.  Conflicts  of  tribes,  dwindlings  or  extinctions 
of  some,  growths  and  spontaneous  divisions  of  others,  continue. 
The  formation  of  a  larger  society  results  only  by  the  joining  of 
such  smaller  societies;  w^hich  occurs  without  obliterating  the 
divisions  previously  caused  by  separations.  This  process  may 
be  seen  now  going  on  among  uncivilized  races,  as  it  once  w^ent  on 
among  the  ancestors  of  the  civilized  races.  Instead  of  absolute 
independence  of  small  hordes,  such  as  the  low^est  savages  show  us, 
more  advanced  savages  show  us  slight  cohesions  among  larger 
hordes.  In  North  America  each  of  the  three  great  tribes  of  Co- 
manches  consists  of  various  bands,  having  such  feeble  combination 
only,  as  results  from  the  personal  character  of  the  great  chief. 
So  of  the  Dakotahs  there  are,  according  to  Burton,  seven  principal 
bands,  each  including  minor  bands,  numbering  altogether,  ac- 
cording to  Catlin,  forty-two.  And  in  like  manner  the  five  Iro- 
quois nations  had  severally  eight  tribes.  Closer  unions  of  these 
slightly-coherent  original  groups  arise  under  favorable  conditions ; 
but  they  only  now  and  then  become  permanent.  A  common 
form  of  the  process  is  that  described  by  Mason  as  occurring  among 
the  Karens.  "  Each  village,  with  its  scant  domain,  is  an  inde- 
pendent State,  and  every  chief  a  prince ;  but  now  and  then  a  little 
Napoleon  arises,  who  subdues  a  kingdom  to  himself,  and  builds 
up  an  empire.  The  dynasties,  however,  last  only  with  the  con- 
trolling mind."  The  like  happens  in  Africa.  Livingstone  says 
—  "  Formerly  all  the  Maganja  were  united  under  the  government 
of  their  great  Chief,  Undi;  .  .  .  but  after  Undies  death  it  fell  to 


518  PROCESS  OF  LEGAL  EVOLUTION  [Paet  III. 

pieces.  .  .  .  This  has  been  the  inevitable  fate  of  every  African 
empire  from  time  immemorial."  Only  occasionally  does  there 
result  a  compound  social  aggregate  that  endures  for  a  considerable 
period,  as  Dahomey  or  as  Ashantee,  which  is  "  an  assemblage  of 
States  owing  a  kind  of  feudal  obedience  to  the  sovereign."  The 
histories  of  Madagascar  and  of  sundry  Polynesian  islands  also 
display  these  transitory  compound  groups,  out  of  which  at  length 
come  in  some  cases  permanent  ones.  During  the  earliest  times 
of  the  extinct  civilized  races,  like  stages  were  passed  through.  In 
the  words  of  Maspero,  Egypt  was  ''  divided  at  first  into  a  great 
number  of  tribes,  which  at  several  points  simultaneously  began 
to  establish  small  independent  states/every  one  of  which  had  its 
laws  and  its  worship."  The  compound  groups  of  Greeks  first 
formed,  were  those  minor  ones  resulting  from  the  subjugation  of 
weaker  towns  by  stronger  neighboring  towns.  And  in  Northern 
Europe  during  pagan  days,  the  numerous  German  tribes,  each 
with  its  cantonal  divisions,  illustrated  this  second  stage  of  ag- 
gregation. After  such  compound  societies  are  consolidated,  rep- 
etition of  the  process  on  a  larger  scale  produces  doubly-compound 
societies ;  which,  usually  cohering  but  feebly,  become  in  some  cases 
quite  coherent.  Maspero  infers  that  the  Egyptian  nomes  de- 
scribed above  as  resulting  from  integrations  of  tribes,  coalesced 
into  the  two  great  principalities,  Upper  Egypt  and  Lower  Egypt, 
which  were  eventually  united :  the  small  states  becoming  prov- 
inces. The  boasting  records  of  Mesopotamian  kings  similarly 
show  us  this  union  of  unions  going  on.  So,  too,  in  Greece  the 
integration  at  first  occurring  locally,  began  afterwards  to  combine 
the  minor  societies  into  two  confederacies.  During  Roman  days 
there  arose  for  defensive  purposes  federations  of  tribes,  which 
eventually  consolidated ;  and  subsequently  these  were  compounded 
into  still  larger  aggregates.  Before  and  after  the  Christian  era, 
the  like  happened  throughout  Northern  Europe.  Then  after  a 
period  of  vague  and  varying  combinations,  there  came,  in  later 
times,  as  is  well  illustrated  by  French  history,  a  massing  of  small 
feudal  territories  into  provinces,  and  a  subsequent  massing  of 
these  into  kingdoms. 

So  that  in  both  organic  and  super-organic  growths,  we  see  a 
process  of  compounding  and  re-compounding  carried  to  various 
stages.  In  both  cases,  after  some  consolidation  of  the  smallest 
aggregates  there  comes  the  process  of  forming  larger  aggregates 
by  union  of  them;  and  in  both  cases  repetition  of  this  process 
makes  secondary  aggregates  into  tertiary  ones. 


Chap.   XXII.]  INTEGRATION  AND   DIFFERENTIATION  519 

§  4.  Organic  growth  and  super-organic  growth  have  yet  another 
analogy.  As  above  said,  increase  by  multiplication  of  individuals 
in  a  group,  and  increase  by  union  of  groups,  may  go  on  simul- 
taneously ;  and  it  does  this  in  both  cases. 

The  original  clusters,  animal  and  social,  are  not  only  small, 
but  they  lack  density.  Creatures  of  low  types  occupy  large  spaces 
considering  the  small  quantities  of  animal  substance  they  contain ; 
and  low-type  societies  spread  over  areas  that  are  wide  relatively 
to  the  numbers  of  their  component  individuals.  But  as  integra- 
tion in  animals  is  shown  by  concentration  as  well  as  by  increase 
of  bulk ;  so  that  social  integration  which  results  from  the  cluster- 
ing of  clusters,  is  joined  with  augmentation  of  the  number  con- 
tained by  each  cluster.  If  we  contrast  the  sprinkling  in  regions 
inhabited  by  wild  tribes  with  the  crowds  filling  equal  regions  in 
Europe ;  or  if  we  contrast  the  density  of  population  in  England 
under  the  Heptarchy  w  ith  its  present  density ;  we  see  that  besides 
the  growth  produced  by  union  of  groups  there  has  gone  on  inter- 
stitial growth.  Just  as  the  higher  animal  has  become  not  only 
larger  than  the  lower  but  more  solid ;  so,  too,  has  the  higher  society. 

Social  growth,  then,  equally  with  the  growth  of  a  living  body, 
shows  us  the  fundamental  trait  of  evolution  under  a  twofold  aspect. 
Integration  is  displayed  both  in  the  formation  of  a  larger  mass, 
and  in  the  progress  of  such  mass  towards  that  coherence  due  to 
closeness  of  parts. 

It  is  proper  to  add,  how^ever,  that  there  is  a  mode  of  social 
growth  to  which  organic  growth  affords  no  parallel  —  that  caused 
by  the  migration  of  units  from  one  society  to  another.  Among 
many  primitive  groups  and  a  few  developed  ones,  this  is  a  con- 
siderable factor ;  but,  generally,  its  effect  bears  so  small  a  ratio 
to  the  effects  of  growth  by  increase  of  population  and  coalescence 
of  groups,  that  it  does  not  much  qualify  the  analogy. 

II.   Social  Structures 

§  5.  In  societies,  as  in  living  bodies,  increase  of  mass  is  habit- 
ually accompanied  by  increase  of  structure.  Along  with  that 
integration  which  is  the  primary  trait  of  evolution,  both  exhibit 
in  high  degrees  the  secondary  trait,  differentiation. 

The  association  of  these  two  characters  in  animals  was  described 
in  the  ''  Principles  of  Biology."  ^  Excluding  certain  low  kinds 
of  them  whose  activities  are  little  above  those  of  plants,  we  recog- 

'  §44. 


520  PROCESS    OF    LEGAL   EVOLUTION  [Part  III. 

nized  the  general  law  that  large  aggregates  have  high  crganiza- 
tions.  The  qualifications  of  this  law  which  go  along  with  differ- 
ences of  medium,  of  habitat,  of  type,  are  numerous;  but  when 
made  they  leave  intact  the  truth  that  for  carrying  on  the  combined 
life  of  an  extensive  mass,  involved  arrangements  are  required. 
So,  too,  is  it  with  societies.  As  we  progress  from  small  groups  to 
larger ;  from  simple  groups  to  compound  groups ;  from  compound 
groups  to  doubly  compound  ones;  the  unlikenesses  of  parts  in- 
crease. The  social  aggregate,  homogeneous  when  minute,  habit- 
ually gains  in  heterogeneity  along  with  each  increment  of  growth ; 
and  to  reach  great  size  must  acquire  great  complexity.  Let  us 
glance  at  the  leading  stages. 

Naturally  in  a  state  like  that  of  the  Cayaguas  or  Wood-Indians 
of  South  America,  so  little  social  that  "  one  family  lives  at  a  dis- 
tance from  another  ",  social  organization  is  impossible ;  and  even 
where  there  is  some  slight  association  of  families,  organization 
does  not  arise  while  they  are  few  and  wandering.  Groups  of 
Esquimaux,  of  Australians,  of  Bushmen,  of  Fuegians,  are  without 
even  that  primary  contrast  of  parts  implied  by  settled  chieftain- 
ship. Their  members  are  subject  to  no  control  but  such  as  is 
temporarily  acquired  by  the  stronger,  or  more  cunning,  or  more 
experienced :  not  even  a  permanent  nucleus  is  present.  Habit- 
ually where  larger  simple  groups  exist,  we  find  some  kind  of  head. 
Though  not  a  uniform  rule  (for,  as  we  shall  hereafter  see,  the 
genesis  of  a  controlling  agency  depends  on  the  nature  of  the  social 
activities),  this  is  a  general  rule.  The  headless  clusters,  wholly 
ungoverned,  are  incoherent,  and  separate  before  they  acquire 
considerable  sizes;  but  along  with  maintenance  of  an  aggregate 
approaching  to,  or  exceeding,  a  hundred,  we  ordinarily  find  a 
simple  or  compound  ruling  agency  —  one  or  more  men  claiming 
and  exercising  authority  that  is  natural,  or  supernatural,  or  both. 
This  is  the  first  social  differentiation.  Soon  after  it  there  fre- 
quently comes  another,  tending  to  form  a  division  between  regu- 
lative and  operative  parts.  In  the  lowest  tribes  this  is  rudely 
represented  only  by  the  contrast  in  status  between  the  sexes : 
the  men,  having  unchecked  control,  carry  on  such  external  activ- 
ities as  the  tribe  shows  us,  chiefly  in  war ;  while  the  women  are 
made  drudges  who  perform  the  less  skilled  parts  of  the  process 
of  sustentation.  But  that  tribal  growth,  and  establishment  cf 
chieftainship,  which  gives  military  superiority,  presently  causes 
enlargement  of  the  operative  part  by  adding  captives  to  it.  This 
begins  unobtrusively.     While  in  battle  the  men  are  killed,  and 


Chap.   XXII.]  INTEGRATION   AND   DIFFERENTIATION  521 

often  afterwards  eaten,  the  non-combatants  are  enslaved.  Pata- 
gonians,  for  example,  make  slaves  of  women  and  children  taken 
in  war.  Later,  and  especially  when  cannibalism  ceases,  comes 
the  enslavement  of  male  captives ;  whence  results,  in  some  cases, 
an  operative  part  clearly  marked  off  from  the  regulative  part. 
Among  the  Chinooks,  "  slaves  do  all  the  laborious  work."  We 
read  that  the  Beluchi,  avoiding  the  hard  labor  of  cultivation, 
impose  it  on  the  Jutts,  the  ancient  inhabitants  whom  they  have 
subjugated.  Beecham  says  it  is  usual  on  the  Gold  Coast  to  make 
the  slaves  clear  the  ground  for  cultivation.  And  among  the 
Felatahs  "  slaves  are  numerous :  the  males  are  employed  in  weav- 
ing, collecting  wood  or  grass,  or  on  any  other  kind  of  work ;  some 
of  the  women  are  engaged  in  spinning  ...  in  preparing  the  yarn 
for  the  loom,  others  in  pounding  and  grinding  corn,  etc." 

Along  with  that  increase  of  mass  caused  by  union  of  primary 
social  aggregates  into  a  secondary  one,  a  further  unlikeness  of 
parts  arises.  The  holding  together  of  the  compound  cluster 
implies  a  head  of  the  whole  as  well  as  heads  of  the  parts ;  and  a 
differentiation  analogous  to  that  which  originally  produced  a  chief, 
now  produces  a  chief  of  chiefs.  Sometimes  the  combination  is 
made  for  defence  against  a  common  foe,  and  sometimes  it  results 
from  conquest  by  one  tribe  of  the  rest.  In  this  last  case  the  pre- 
dominant tribe,  in  maintaining  its  supremacy,  develops  more  highly 
its  military  character :  thus  becoming  unlike  the  others. 

After  such  clusters  of  clusters  have  been  so  consolidated  that 
their  united  powers  can  be  wielded  by  one  governing  agency, 
there  come  alliances  with,  or  subjugations  of,  other  clusters  of 
clusters,  ending  from  time  to  time  in  coalescence.  When  this 
happens  there  results  still  greater  complexity  in  the  governing 
agency,  with  its  king,  local  rulers,  and  petty  chiefs;  and  at  the 
same  time,  there  arise  more  marked  divisions  of  classes  —  mili- 
tary, priestly,  slave,  etc.  Clearly,  then,  complication  of  structure 
accompanies  increase  of  mass. 

§  6.  This  increase  of  heterogeneity,  which  in  both  classes  of 
aggregates  goes  along  with  growth,  presents  another  trait  in  com- 
mon. Beyond  unlikenesses  of  parts  due  to  development  of  the  co- 
ordinating agencies,  there  presently  follow  unlikenesses  among 
the  agencies  co-ordinated  —  the  organs  of  alimentation,  etc.,  in 
the  one  case,  and  the  industrial  structures  in  the  other. 

W^hen  animal-aggregates  of  the  lowest  order  unite  to  form 
one  of  a  higher  order,  and  when,  again,  these  secondary  aggregates 
are  compounded  into  tertiary  aggregates,  each  component  is  at 


522  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

first  similar  to  the  other  components ;  but  in  the  course  of  evolu- 
tion dissimilarities  arise  and  become  more  and  more  decided. 
Among  the  Coelenterata  the  stages  are  clearly  indicated.  From 
the  sides  of  a  common  hydra,  bud  out  young  ones  which,  when 
fully  developed,  separate  from  their  parent.  In  the  compound 
hydroids  the  young  polypes  produced  in  like  manner,  remain 
permanently  attached,  and,  themselves  repeating  the  process, 
presently  form  a  branched  aggregate.  When  the  members  of  the 
compound  group  lead  similar  and  almost  independent  lives, 
as  in  various  rooted  genera,  they  remain  similar :  save  those  of 
them  which  become  reproductive  organs.  But  in  the  floating 
and  swimming  clusters,  formed  by  a  kindred  process,  the  differ- 
ently-conditioned members  become  different,  while  assuming 
different  functions.  It  is  thus  with  the  minor  social  groups  com- 
bined into  a  major  social  group.  Each  tribe  originally  had  within 
itself  such  feebly-marked  industrial  divisions  as  sufficed  for  its 
low  kind  of  life ;  and  these  were  like  those  of  each  other  tribe. 
But  union  facilitates  exchange  of  commodities ;  and  if,  as  mostly 
happens,  the  component  tribes  severally  occupy  localities  favor- 
able to  unlike  kinds  of  production,  unlike  occupations  are  initiated, 
and  there  result  unlikenesses  of  industrial  structures.  Even 
between  tribes  not  united,  as  those  of  Australia,  barter  of  products 
furnished  by  their  respective  habitats  goes  on  so  long  as  war  does 
not  hinder.  And  evidently  when  there  is  reached  such  a  stage  of 
integration  as  in  Madagascar,  or  as  in  the  chief  Negro  states  of 
Africa,  the  internal  peace  that  follows  subordination  to  one  gov- 
ernment makes  commercial  intercourse  easy.  The  like  parts 
being  permanently  held  together,  mutual  dependence  becomes 
possible;  and  along  with  growing  mutual  dependence  the  parts 
grow  unlike. 

§  7.  The  advance  of  organization  which  thus  follows  the  ad- 
vance of  aggregation,  alike  in  individual  organisms  and  in  social 
organisms,  conforms  in  both  cases  to  the  same  general  law :  dif- 
ferentiations proceed  from  the  more  general  to  the  more  special. 
First  broad  and  simple  contrasts  of  parts;  then  within  each  of 
the  parts  primarily  contrasted,  changes  which  make  unlike  divi- 
sions of  them ;  then  within  each  of  these  unlike  divisions,  minor 
unlikenesses;    and  so  on  continually. 

The  successive  stages  in  the  development  of  a  vertebrate  column, 
illustrate  this  law  in  animals.  At  the  outset  an  elongated  depres- 
sion of  the  blastoderm,  called  the  "  primitive  groove  ",  represents 
the  entire  cerebro-spinal  axis :  as  yet  there  are  no  marks  of  verte- 


Chap.  XXII.]  INTEGRATION   AND   DIFFERENTIATION  523 

brae,  nor  even  a  contrast  between  the  part  which  is  to  become 
head  and  the  part  which  is  to  become  back-bone.  Presently 
the  ridges  bounding  this  groove,  growing  up  and  folding  over 
more  rapidly  at  the  anterior  end,  which  at  the  same  time  widens, 
begin  to  make  the  skull  distinguishable  from  the  spine;  and  the 
commencement  of  segmentation  in  the  spinal  part,  while  the 
cephalic  part  remains  unsegmented,  strengthens  the  contrast. 
Within  each  of  these  main  divisions  minor  divisions  soon  arise. 
The  rudimentary  cranium,  bending  forward,  simultaneously  ac- 
quires three  dilations  indicating  the  contained  nervous  centres; 
while  the  segmentation  of  the  spinal  column,  spreading  to  its 
ends,  produces  an  almost-uniform  series  of  "  proto- vertebrae." 
At  first  these  proto-vertebrse  not  only  differ  very  little  from  one 
another,  but  each  is  relatively  simple  —  a  quadrate  mass.  Grad- 
ually this  almost-uniform  series  falls  into  unlike  divisions  —  the 
cervical  group,  the  dorsal  group,  the  lumbar  group;  and  while 
the  series  of  vertebrae  is  thus  becoming  specialized  in  its  different 
regions,  each  vertebra  is  changing  from  that  general  form  which 
it  at  first  had  in  common  with  the  rest,  to  the  more  special  form 
eventually  distinguishing  it  from  the  rest.  Throughout  the  em- 
bryo there  are,  at  the  same  time,  going  on  kindred  processes; 
which,  first  making  each  large  part  unlike  all  other  large  parts, 
then  make  the  parts  of  that  part  unlike  one  another.  During 
social  evolution  analogous  metamorphoses  may  everywhere  be 
traced.  The  rise  of  the  structure  exercising  religious  control 
will  serve  as  an  example.  In  simple  tribes,  and  in  clusters  of  tribes 
during  their  early  stages  of  aggregation,  we  find  men  who  are  at 
once  sorcerers,  priests,  diviners,  exorcists,  doctors,  —  men  who 
deal  with  supposed  supernatural  beings  in  all  the  various  possible 
ways:  propitiating  them,  seeking  knowledge  and  aid  from  them, 
commanding  them,  subduing  them.  Along  with  advance  in  social 
integration,  there  come  both  differences  of  function  and  differ- 
ences of  rank.  In  Tanna  "  there  are  rain-makers  .  .  .  and  a  host 
of  other  '  sacred  men  ' ;  "  in  Fiji  there  are  not  only  priests,  but 
seers;  among  the  Sandwich  Islanders  there  are  diviners  as  well 
as  priests;  among  the  New  Zealanders,  Thomson  distinguishes 
between  priests  and  sorcerers;  and  among  the  Kaffirs,  besides 
diviners  and  rain-makers,  there  are  two  classes  of  doctors  who 
respectively  rely  on  supernatural  and  on  natural  agents  in  curing 
their  patients.  More  advanced  societies,  as  those  of  ancient 
America,  show  us  still  greater  multiformity  of  this  once-uniform 
group.     In  Mexico,  for  example,  the  medical  class,  descending 


524  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

from  a  class  of  sorcerers  who  dealt  antagonistically  with  the  super- 
natural agents  supposed  to  cause  disease,  were  distinct  from  the 
priests,  whose  dealings  with  supernatural  agents  were  propitiatory. 
Further,  the  sacerdotal  class  included  several  kinds,  dividing 
the  religious  offices  among  them  —  sacrificers,  diviners,  singers, 
composers  of  hymns,  instructors  of  youth;  and  then  there  were 
also  gradations  of  rank  in  each.  This  progress  from  general  to 
special  in  priesthoods,  has,  in  the  higher  nations,  led  to  such 
marked  distinctions  that  the  original  kinships  are  forgotten.  The 
priest-astrologers  of  ancient  races  were  initiators  of  the  scientific 
class,  now  variously  specialized;  from  the  priest-doctors  of  old 
have  come  the  medical  class  with  its  chief  division  and  minor 
divisions ;  while  within  the  clerical  class  proper,  have  arisen  not 
only  various  ranks  from  Pope  down  to  acolyte,  but  various  kinds 
of  functionaries  —  dean,  priest,  deacon,  chorister,  as  well  as  others 
classed  as  curates  and  chaplains.  Similarly  if  we  trace  the  gen- 
esis of  any  industrial  structure;  as  that  which  from  primitive 
blacksmiths  who  smelt  their  own  iron  as  well  as  make  implements 
from  it,  brings  us  to  our  iron-manufacturing  districts,  where  prepa- 
ration of  the  metal  is  separated  into  smelting,  refining,  puddling, 
rolling,  and  where  turning  this  metal  into  implements  is  divided 
into  various  businesses. 

The  transformation  here  illustrated,  is,  indeed,  an  aspect  of 
that  transformation  of  the  homogeneous  into  the  heterogeneous 
which  everywhere  characterizes  evolution;  but  the  truth  to  be 
noted  is  that  it  characterizes  the  evolution  of  individual  organ- 
isms and  of  social  organisms  in  especially  high  degrees. 

§  8.  Closer  study  of  the  facts  shows  us  another  striking  paral- 
lelism. Organs  in  animals  and  organs  in  societies  have  internal 
arrangements  framed  on  the  same  principle. 

Differing  from  one  another  as  the  viscera  of  a  living  creature 
do  in  many  respects,  they  have  several  traits  in  common.  Each 
viscus  contains  appliances  for  conveying  nutriment  to  its  parts, 
for  bringing  it  materials  on  which  to  operate,  for  carrying  away 
the  product,  for  draining  off  waste  matters ;  as  also  for  regulating 
its  activity.  Though  liver  and  kidneys  are  unlike  in  their  general 
appearances  and  minute  structures,  as  well  as  in  the  offices  they 
fulfil,  the  one  as  much  as  the  other  has  a  system  of  arteries,  a 
system  of  veins,  a  system  of  lymphatics  —  has  branched  channels 
through  which  its  excretions  escape,  and  nerves  for  exciting  and 
checking  it.  In  large  measure  the  like  is  true  of  those  higher 
organs  which,  instead  of  elaborating  and  purifying  and  distribut- 


Chap.   XXII.]  INTEGRATION  AND   DIFFERENTIATION  525 

ing  the  blood,  aid  the  general  life  by  carrying  on  external  actions 
—  the  nervous  and  muscular  organs.  These,  too,  have  their  ducts 
for  bringing  prepared  materials,  ducts  for  drafting  off  vitiated 
materials,  ducts  for  carrying  away  effete  matters;  as  also  their 
controlling  nerve-cells  and  fibres.  So  that,  along  with  the  many 
marked  differences  of  structure,  there  are  these  marked  com- 
munities of  structure. 

It  is  the  same  in  a  society.  The  clustered  citizens  forming  an 
organ  which  produces  some  commodity  for  national  use,  or  which 
otherwise  satisfies  national  wants,  has  within  it  subservient  struc- 
tures substantially  like  those  of  each  other  organ  carrying  on  each 
other  function.  Be  it  a  cotton-weaving  district  or  a  district 
where  cutlery  is  made,  it  has  a  set  of  agencies  which  bring  the  raw 
material,  and  a  set  of  agencies  which  collect  and  send  away  the 
manufactured  articles ;  it  has  an  apparatus  of  major  and  minor 
channels  through  which  the  necessaries  of  life  are  drafted  out  of 
the  general  stocks  circulating  through  the  kingdom,  and  brought 
home  to  the  local  workers  and  those  who  direct  them ;  it  has 
appliances,  postal  and  other,  for  bringing  those  impulses  by  which 
the  industry  of  the  place  is  excited  or  checked ;  it  has  local  con- 
trolling powers,  political  and  ecclesiastical,  by  which  order  is 
maintained  and  healthful  action  furthered.  So,  too,  when,  from 
a  district  which  secretes  certain  goods,  we  turn  to  a  sea-port  which 
absorbs  and  sends  out  goods,  we  find  the  distributing  and  re- 
straining agencies  are  mostly  the  same.  Even  where  the  social 
organ,  instead  of  carrying  on  a  material  activity,  has,  like  a  uni- 
versity, the  office  of  preparing  certain  classes  of  units  for  social 
functions  of  particular  kinds,  this  general  type  of  structure  is  re- 
peated :  ^  the  appliances  for  local  sustentation  and  regulation, 
differing  in  some  respects,  are  similar  in  essentials  —  there  are 
like  classes  of  distributors,  like  classes  for  civil  control,  and  a  spe- 
cially-developed class  for  ecclesiastical  control. 

On  observing  that  this  community  of  structure  among  social 
organs,  like  the  community  of  structure  among  organs  in  a 
living  body,  necessarily  accompanies  mutual  dependence,  we 
shall  see  even  more  clearly  than  hitherto,  how  great  is  the  like- 
ness of  nature  between  individual  organization  and  social  organ- 
ization. 

§  9.  One  more  structural  analogy  must  be  named.  The  forma- 
tion of  organs  in  a  living  body  proceeds  in  ways  which  we  may 
distinguish  as  primary,  secondary,  and  tertiary ;  and,  paralleling 
them,  there  are  primary,  secondary,  and  tertiary  ways  in  which 


526  PROCESS   OF   LEGAL  EVOLUTION      '  [Part  III. 

social  organs  are  formed.     We  will  look  at  each  of  the  three  par- 
allelisms by  itself. 

In  animals  of  low  types,  bile  is  secreted,  not  by  a  liver,  but  by 
separate  cells  imbedded  in  the  wall  of  the  intestine  at  one  part. 
These  cells  individually  perform  their  function  of  separating  cer- 
tain matters  from  the  blood,  and  individually  pour  out  what  they 
separate.  No  organ,  strictly  so-called,  exists ;  but  only  a  number 
of  units  not  yet  aggregated  into  an  organ.  This  is  analogous  to 
the  incipient  form  of  an  industrial  structure  in  a  society.  At 
first  each  worker  carries  on  his  occupation  alone,  and  himself 
disposes  of  the  product  to  consumers.  The  arrangement  still 
extant  in  our  villages,  where  the  cobbler  at  his  own  fireside  makes 
and  sells  boots,  and  where  the  blacksmith  single-handed  does 
what  iron-work  is  needed  by  his  neighbours,  exemplifies  the 
primitive  type  of  every  producing  structure.  Among  savages 
slight  differentiations  arise  from  individual  aptitudes.  Even 
of  the  degraded  Fuegians,  Fitzroy  tells  us  that  "  one  becomes  an 
adept  with  the  spear;  another  with  the  sling;  another  with  a 
bow  and  arrows."  As  like  differences  of  skill  among  members 
of  primitive  tribes  cause  some  to  become  makers  of  special  things, 
it  results  that  necessarily  the  industrial  organ  begins  as  a  social 
unit.  Where,  as  among  the  Shasta  Indians  of  California,  "  arrow- 
making  is  a  distinct  profession  ",  it  is  clear  that  manipulative 
superiority  being  the  cause  of  the  differentiation,  the  worker  is 
at  first  single.  And  during  subsequent  periods  of  growth,  even 
in  small  settled  communities,  this  type  continues.  The  statement 
that  among  the  Coast  Negroes,  "  the  most  ingenious  man  in  the 
village  is  usually  the  blacksmith,  joiner,  architect,  and  weaver  ", 
while  it  shows  us  artizan-f unctions  in  an  undifferentiated  stage, 
also  shows  us  how  completely  individual  is  the  artizan-structure : 
the  implication  being  that  as  the  society  grows,  it  is  by  the  addi- 
tion of  more  such  individuals,  severally  carrying  on  their  occu- 
pations independently,  that  the  additional  demand  is  met. 
.  By  two  simultaneous  changes,  an  incipient  secreting  organ 
in  an  animal  reaches  that  higher  structure  with  which  our  next 
comparison  may  be  made.  The  cells  pass  from  a  scattered  cluster 
into  a  compact  cluster;  and  they  severally  become  compound. 
In  place  of  a  single  cell  elaborating  and  emitting  its  special  prod- 
uct, we  now  have  a  small  elongated  sac  containing  a  family  of 
cells ;  and  this,  through  an  opening  at  one  end,  gives  exit  to  their 
products.  At  the  same  time  there  is  formed  an  integrated  group 
of  such  follicles,  each  containing  secreting  units  and  having  its 


Chap.   XXII.]  INTEGRATION   AND  DIFFERENTIATION  527 

separate  orifice  of  discharge.  To  this  type  of  individual  organ, 
we  find,  in  semi-civilized  societies,  a  type  of  social  organ  closely 
corresponding.  In  one  of  these  settled  and  growing  communities, 
the  demands  upon  individual  workers,  now  more  specialized  in 
their  occupations,  have  become  unceasing;  and  each  worker, 
occasionally  pressed  by  work,  makes  helpers  of  his  children. 
This  practice,  beginning  incidentally,  establishes  itself;  and 
eventually  it  grows  into  an  imperative  custom  that  each  man  shall 
bring  up  his  boys  to  his  own  trade.  Illustrations  of  this  stage 
are  numerous.  Skilled  occupations,  "  like  every  other  calling 
and  office  in  Peru,  always  descended  from  father  to  son.  The 
division  of  castes,  in  this  particular,  was  as  precise  as  that  which 
existed  in  Egypt  or  Hindostan."  In  Mexico,  too,  "  the  sons  in 
general  learned  the  trades  of  their  fathers,  and  embraced  their 
professions."  The  like  was  true  of  the  industrial  structures  of 
European  nations  in  early  times.  By  the  Theodosian  code,  a 
Roman  youth  "  was  compelled  to  follow  the  employment  of  his 
father  .  .  .  and  the  suitor  who  sought  the  hand  of  the  daughter 
could  only  obtain  his  bride  by  becoming  wedded  to  the  calling 
of  her  family."  In  mediaeval  France  handicrafts  were  inherited ; 
and  the  old  English  periods  were  characterized  by  a  like  usage. 
Branching  of  the  family  through  generations  into  a  number  of 
kindred  families  carrying  on  the  same  occupation,  produced  the 
germ  of  the  guild;  and  the  related  famihes  who  monopolized 
each  industry  formed  a  cluster  habitually  occupying  the  same 
quarter.  Hence  the  still  extant  names  of  many  streets  in  English 
towns  —  '*  Fellmonger,  Horsemonger,  and  Fleshmonger,  Shoe- 
wright  and  Shieldwright,  Turner,  and  Salter  Streets  " :  a  segre- 
gation like  that  which  still  persists  in  Oriental  bazaars.  And  now, 
on  observing  how  one  of  these  industrial  quarters  was  composed 
of  many  allied  families,  each  containing  sons  working  under 
direction  of  a  father,  who  while  sharing  in  the  work  sold  the  prod- 
uce, and  who,  if  the  family  and  business  were  large,  became  mainly 
a  channel  taking  in  raw  material  and  giving  out  the  manufactured 
article,  we  see  that  there  existed  an  analogy  to  the  kind  of  glandular 
organ  described  above,  which  consists  of  a  number  of  adjacent 
cell-containing  follicles  having  separate  mouths. 

A  third  stage  of  the  analogy  may  be  traced.  Along  with  that 
increase  of  a  glandular  organ  necessitated  by  the  more  active 
functions  of  a  more  developed  animal,  there  goes  a  change  of 
structure  consequent  on  augmentation  of  bulk.  If  the  follicles 
multiply  while  their  ducts  have  all  to  be  brought  to  one  spot,  it 


528  PROCESS   OF    LEGAL   EVOLUTION  [Part  III. 

results  that  their  orifices,  increasingly  numerous,  occupy  a  larger 
area  of  the  wall  of  the  cavity  which  receives  the  discharge ;  and 
if  lateral  extension  of  this  area  is  negatived  by  the  functional 
requirements,  it  results  that  the  needful  area  is  gained  by  forma- 
tion of  a  caecum.  Further  need  of  the  same  kind  leads  to  secondary 
cseca  diverging  from  this  main  caecum ;  which  hence  becomes,  in 
part,  a  duct.  Thus  is  at  length  evolved  a  large  viscus,  such  as  a 
liver,  having  a  single  main  duct  with  ramifying  branches  running 
throughout  its  mass.  Now  we  rise  from  the  above-described 
kind  of  industrial  organ  by  parallel  stages  to  a  higher  kind.  There 
is  no  sudden  leap  from  the  household-type  to  the  factory-type, 
but  a  gradual  transition.  The  first  step  is  shown  us  in  those  rules 
of  trade-guilds  under  which,  to  the  members  of  the  family,  might  be 
added  an  apprentice  (possibly  at  first  a  relation),  who,  as  Brentano 
says,  "  became  a  member  of  the  family  of  his  master,  who  in- 
structed him  in  his  trade,  and  who,  like  a  father,  had  to  watch 
over  his  morals,  as  well  as  his  work  "  :  practically,  an  adopted  son. 
This  modification  having  been  established,  there  followed  the 
employing  of  apprentices  who  had  changed  into  journeymen. 
With  development  of  this  modified  household-group,  the  master 
grew  into  a  seller  of  goods  made,  not  by  his  own  family  only,  but 
by  others ;  and,  as  his  business  enlarged,  necessarily  ceased  to  be 
a  worker,  and  became  wholly  a  distributor  —  a  channel  through 
which  went  out  the  products,  not  of  a  few  sons,  but  of  many 
unrelated  artizans.  This  led  the  way  to  establisments  in  which 
the  employed  far  outnumbered  the  members  of  the  family ;  until 
at  length,  with  the  use  of  mechanical  power,  came  the  factory: 
a  series  of  rooms,  each  containing  a  crowd  of  producing  units, 
and  sending  its  tributary  stream  of  product  to  join  other  streams 
before  reaching  the  single  place  of  exit.  Finally,  in  greatly  de- 
veloped industrial  organs,  we  see  many  factories  clustered  in  the 
same  town,  and  others  in  adjacent  towns;  to  and  from  which, 
along  branching  roads,  come  the  raw  materials  and  go  the  bales 
of  cloth,  calico,  etc. 

There  are  instances  in  which  a  new  industry  passes  through 
these  stages  in  the  course  of  a  few  generations;  as  happened 
with  the  stocking-manufacture.  In  the  Midland  counties,  fifty 
years  ago,  the  rattle  and  burr  of  a  solitary  stocking-frame  came 
from  a  road-side  cottage  every  here  and  there :  the  single  worker 
made  and  sold  his  product.  Presently  arose  work-shops  in  which 
several  such  looms  might  be  heard  going :  there  was  the  father 
and  his  sons,  with  perhaps  a  journeyman.     At  length  grew  up  the 


CiLiP.   XXir.J  INTEGRATION    AND    DIFFERENTIATION  529 

lar^e  biiilcling  containing  many  looms  driven  by  a  steam-engine; 
and  finally  many  such  large  buildings  in  the  same  town. 

§  10.  These  structural  analogies  reach  a  final  phase  that  is  still 
more  striking.  In  both  cases  there  is  a  contrast  between  the 
original  mode  of  development  and  a  substituted  later  mode. 

In  the  general  course  of  organic  evolution  from  low  types  to 
high,  there  have  been  passed  through  by  insensible  modifications 
all  the  stages  above  described ;  but  now,  in  the  individual  evolu- 
tion of  an  organism  of  high  type,  these  stages  are  greatly  abridged, 
and  an  organ  is  produced  by  a  comparatively  direct  process. 
Thus  the  liver  of  a  mammalian  embryo  is  formed  by  the  accumu- 
lation of  numerous  cells,  which  presently  grow  into  a  mass  pro- 
jecting from  the  wall  of  the  intestine ;  while  simultaneously  there 
dips  down  into  it  a  csecum  from  the  intestine.  Transformation 
of  this  caecum  into  the  hepatic  duct  takes  place  at  the  same  time 
that  within  the  mass  of  cells  there  arise  minor  ducts,  connected 
with  this  main  duct;  and  there  meanwhile  go  on  other  changes 
which,  during  evolution  of  the  organ  through  successively  higher 
types,  came  one  after  another.  In  the  formation  of  industrial 
organs  the  like  happens.  Now  that  the  factory  system  is  well- 
established  —  now  that  it  has  become  ingrained  in  the  social 
constitution,  we  see  direct  assumptions  of  it  in  all  industries  for 
which  its  fitness  has  been  shown.  If  at  one  place  the  discovery 
of  ore  prompts  the  setting  up  of  iron-works,  or  at  another  a  special 
kind  of  water  facilitates  brewing,  there  is  no  passing  through  the 
early  stages  of  single  worker,  family,  clustered  families,  and  so 
on ;  but  there  is  a  sudden  drafting  of  materials  and  men  to  the 
spot,  followed  by  formation  of  a  producing  structure  on  the  ad- 
vanced type.  Nay,  not  one  large  establishment  only  is  thus 
evolved  after  the  direct  manner,  but  a  cluster  of  large  establish- 
ments. At  Barrow-in-Furness  we  see  a  town  with  its  iron-works, 
its  importing  and  exporting  businesses,  its  extensive  docks  and 
means  of  communication,  all  in  the  space  of  a  few  years  framed 
after  that  type  which  it  has  taken  centuries  to  develop  through 
successive  modifications. 

An  allied  but  even  more  marked  change  in  the  evolutionary 
process,  is  also  common  to  both  cases.  Just  as  in  the  embryo  of 
a  high  animal,  various  organs  have  their  important  parts  laid 
down  out  of  their  original  order,  in  anticipation,  as  it  were ;  so, 
with  the  body  at  large,  it  happens  that  entire  organs  which,  during 
the  serial  genesis  of  the  type,  came  comparatively  late,  come  in 
the  evolving  individual  comparatively  soon.    This,  which  Prof. 


530  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

Haeckel  has  called  heterochrony,  is  shown  us  in  the  early  marking 
out  of  the  brain  in  a  mammalian  embryo,  though  in  the  lowest 
vertebrate  animal  no  brain  ever  exists ;  or,  again,  in  the  segmenta- 
tion of  the  spinal  column  before  any  alimentary  system  is  formed, 
though,  in  a  proto-vertebrate,  even  when  its  alimentary  system 
is  completed,  there  are  but  feeble  signs  of  segmentation.  The 
analogous  change  of  order  in  social  evolution  is  shown  us  by  new 
societies  which  inherit  the  confirmed  habits  of  old  ones.  Instance 
the  United  States,  where  a  town  in  the  far  west,  laid  down  in  its 
streets  and  plots,  has  its  hotel,  church,  post-office,  built  while 
there  are  but  few  houses ;  and  where  a  railway  is  run  through  the 
wilderness  in  anticipation  of  settlements.  Or  instance  Australia, 
where  a  few  years  after  the  huts  of  gold-diggers  begin  to  cluster 
round  new  mines,  there  is  established  a  printing-office  and  journal ; 
though,  in  the  mother-country,  centuries  passed  before  a  town 
of  like  size  developed  a  like  agency. 


Chapter  XXIII 
PLANETARY   THEORY   OF   THE   LAW'S   EVOLUTION  ^ 

A  TRUTH  to  be  kept  in  mind  is  that  evolution  in  Law,  as  in  other 
cosmic  facts,  is  always  the  result  of  a  conflict  of  forces.  The  situa- 
tion is  very  much  like  that  of  two  men  pushing  face  to  face  on  the 
pavement,  each  seeking  to  pass,  or  wrestling  in  a  final  grip  on  the 
mat;  in  the  wrestling  match,  finally  a  slight  balance  of  force 
prevails,  and  the  one  man  falls  on  his  back,  with  the  other  over 
him  as  the  winner.  Then  there  is  equilibrium  for  a  while,  but  only 
until  the  next  bout  begins.  Law  is  usually  a  series  of  wrestling 
bouts;  the  prize  to  the  final  winner  signifies  the  enactment  of 
the  winning  force  as  a  rule  of  law.  Coniplete  rest  may  or  may 
not  ensue.  But  the  victory  does  not  signify  the  annihilation  of 
the  losing  force ;  it  signifies  only  a  slight  overbalance  in  the  win- 
ning force,  followed  by  a  more  or  less  temporary  rest,  according 
to  the  conventions  of  the  game. 

The  importance  of  this  truth  is  that  to  solve  the  problem  of 
evolution  of  a  legal  rule,  we  must  first  analyze  fully  the  respective 
social  forces  which  were  struggling  underneath  the  surface  be- 
fore the  rule  of  law  came  into  being;  for  the  decision  or  enact- 
ment of  a  rule  of  law  meant  simply  the  over-balance  of  some 
forces  against  other  forces. 

In  physics.  Sir  Isaac  Newton's  third  law  of  motion  was  this: 
**  To  every  force  there  always  exists  a  corresponding  force  which 
is  equal  and  oppositely  directed."  When  the  forces  which  aid  any 
uniform  motion  are  added  to  those  which  oppose  the  motion,  the 
sum  is  always  zero.  And  even  when  motion  is  not  uniform,  and 
acceleration  exists,  there  a  force  of  reaction  will  be  found;  for 
Newton's  law  proclaims  that  action  is  always  equal  and  opposite  to 
reaction.    The  same  truth  obtains  in  the  mental  and  social  world. 

^  [By  John  H.  Wigmore,  co-editor  of  this  Series.  Reprinted  from 
"  Problems  of  the  Law's  Evolution  ",  being  a  portion  of  the  first  of  a  series 
of  three  lectures  delivered  at  the  University  of  Virginia  by  the  author  on 
the  Barbour-Page  Foundation  and  originally  published  in  "Virginia  Law 
Review",  IV,  297  (January,  1917).] 

531 


532  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

As  the  idea  of  opposing  forces  thus  involves  an  idea  of  motion, 
SO  in  analyzing  this  aspect  of  motion  in  evolution  we  are  obliged 
to  ask : 

What  is  meant  by  the  evolution  of  law?  Does  it  mean  neces- 
sarily progress?  Or  may  it  mean  mere  change?  And  if  so, 
change  of  what?  Can  we  conceive  of  a  going  backward,  in  evo- 
lution, —  or  of  the  death  of  an  institution  ?  May  there  be  a  de- 
generacy now  and  then,  in  evolution  ? 

The  usual  discussions  of  legal  evolution  seem  here  to  commit 
certain  fallacies.  For  example,  in  Sir  Henry  Maine's  master- 
piece, "  Ancient  Law  ",  perennial  in  its  freshness  and  stimulus, 
the  learned  author,  in  describing  the  development  of  contract, 
sums  up  the  change  as  a  change  from  general  concepts  to  special 
ones.  Again,  in  the  same  field,  he  declares  that  the  contract  be- 
gan with  ignoring  the  moral  idea  of  keeping  faith  but  looked 
solely  at  some  outward  ceremony,  and  ended  by  minimizing  the 
outward  form  and  protecting  the  mere  mental  and  moral  prom- 
ise, the  actual  will  of  the  parties ;  in  short,  the  movement  is  from 
outward  physical  form  to  inward  moral  essence,  or,  as  he  puts 
it,  **  from  a  gross  to  a  refined  conception."  Again,  in  another 
famous  generalization,  he  offers  the  thesis  that  the  movement 
of  human  relations  in  general  is  "  from  Status  to  Contract."  So, 
too,  De  la  Grasserie  has  discovered,  he  thinks,  some  twenty-eight 
general  trends  in  the  evolution  of  law,  enumerated  thus : 

1 .  From  Custom  to  Ordained  Law  and  to  Judge-Declared  Law ; 

2.  From  Oral  to  Written  and  to  Codified  Law ;  and  so  on.^ 
Now  these  and  other  generalizations  naturally  suggest  two  or 

three  critical  questions,  before  we  can  accept  them  as  solutions 
pro  tanto  of  the  problems  : 

(a)  What  definiteness  of  meaning  do  these  scholars  give  to 
the  evolution  of  a  legal  idea  ?  Let  us  answer  this  by  saying  that 
it  means  something  less  concrete  than  history,  and  something 
more  lifelike  than  a  mathematical  formula.  For  example,  the 
history  of  human  marriage  would  fill  several  volumes ;  but  'its 
evolution  is  something  that  could  be  summed  up  (one  would 
suppose)  in  a  page  or  two.  On  the  other  hand,  to  say,  (for  ex- 
ample) that  the  evolution  of  marriage,  in  respect  to  the  number 
of  persons  that  mate,  passes  from  promiscuity  through  polygamy 
to  monogamy  (assuming  that  this  were  true)  is  too  abstract, 
in  that  it  ignores  the  contrary  local  variations  and  does  not  ex- 
plain them,  and  therefore  fails  to  represent  the  whole  truth. 
1  [See  post,  chap.  XXV,  p.  575  seq.] 


Chap.   XXIII.]  PLANETARY   THEORY  533 

The  reason  is  that  it  fails  to  state  anything  about  the  outside 
factors  which  cause  the  movement;  for  example,  local  poverty 
of.  economic  resources  may  make  polygamy  impossible,  or  local 
moral  precepts  may  make  monogamy  impossible;  and  thus  the 
abstract  formula  becomes  fallacious. 

We  may  therefore,  simply  to  have  a  common  understanding 
of  terms,  take  the  following  definition : 

The  evolution  of  law,  which  we  seek  to  discover,  does  not  im- 
ply progress,  either  morally  or  otherwise,  but  merely  movement ; 
it  does  imply  movement  in  the  abstract  elements  of  the  conduct 
shown  in  history,  seeking  always  to  proceed  to  the  more  and 
more  abstract ;  but  always  including  the  cause  with  the  effect. 
In  other  words,  we  seek  to  trace  the  movement  of  the  more  ab- 
stract elements  in  the  history  of  each  type  of  legal  conduct,  so 
far  as  the  sequence  of  cause  and  effect  can  be  discovered. 

(6)  The  second  critical  question  is :  Do  these  scholars  assume 
constancy  in  a  specific  legal  institution,  in  all  epochs  and  all  com- 
munities? They  do  often  seem  to  assume  this.  They  assume  it 
very  much  as  all  of  us  (including  scientists)  assume  constancy 
in  the  nature  of  the  fundamental  chemical  elements,  such  as 
sodium,  magnesium,  or  nitrogen ;  that  is,  wherever  an  atom  of 
nitrogen  exists  in  the  cosmos,  it  is  always  the  same  in  its  nature, 
and  will  always  work  in  a  certain  way.  Many  years  ago,  I  pub- 
lished an  essay  on  the  development  of  the  mortgage  or  pledge 
idea,  in  all  accessible  systems  of  law,  Germanic,  Greek,  Jewish, 
Babylonian,  Egyptian,  Japanese,  Slavic,  and  Roman  \ ;  and  I 
formed  the  impression  in  my  own  mind  (though  I  publicly  dis- 
claimed insisting  upon  it)  that  the  pledge  idea  had  somewhere  an 
inherent  sameness  or  constancy,  which  would  therefore  develop 
alike,  in  general  features,  in  all  communities  and  in  all  epochs. 
And  we  find  it  often  assumed  by  scholars  that  in  the  world  of  legal 
ideas  there  are  certain  atomic  elements  (so  to  speak)  which, 
if  they  develop  at  all,  will  develop  spontaneously  in  a  necessary 
or  constant  way,  no  matter  what  may  be  the  combinations  with 
others  —  for  instance,  the  movement  from  judge-made  law  to 
legislative  statute,  from  formal  procedure  to  informal  procedure, 
from  unwritten  law  to  written  law,  from  paternal  family  power  to 
individual  independence. 

Now  it  is  of  course  obvious,  upon  reflection,  that  no  such 
inherent  fixed  tendencies  in  legal  ideas  have  been  proved  to  exist. 
Probably  no  scholar  to-day  would  dcliberateiy  affirm  it,  except 
1  [Reprinted  in  Vol.  II  (p.  456)  of  this  Series.] 


534  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

a  few  of  the  idealists.  But  we  need  to  avoid  the  danger  of  its 
assumption  in  tracing  the  positive  evolution  of  law.  What  really 
takes  place,  in  evolution,  is  a  change 'of  effect  whenever  there  is 
a  change  of  cause;  and  these  causes  come  chiefly  from  outside 
the  law  itself.  For  example,  until  the  invention  of  writing,  legal 
customs  could  not  be  written  down,  on  stone  or  parchment ;  the 
Scandinavian  law-men,  for  instance,  committed  the  customs  to 
memory  and  chanted  them,  up  to  about  900  a.d.  All  the  de- 
velopment of  legislation  and  justice  that  ensued  from  such  epoch- 
making  incidents  as  the  inscription  of  the  Twelve  Tables  at 
Roiyie,  or  the  compilation  of  the  Germanic  Codes  in  the  fifth 
and  sixth  centuries  a.d.,  became  possible  only  by  the  use  of 
writing.  If  writing  had  not  come  into  use,  we  cannot  say  just 
what  would  have  been  the  course  of  development.  In  modern 
African  tribes,  for  instance,  justice  is  still  done  without  written 
law;  and  an  important  cause  of  its  difference  from  European 
law  must  be  the  lack  of  writing,  and  not  necessarily  some  in- 
herent nature  of  legal  ideas.  Had  there  been  some  intrinsic  na- 
ture, it  would  have  developed,  irrespective  of  writing. 

Another  circumstance  that  must  make  us  skeptical  as  to  any 
inherent  constancy  of  evolution  for  legal  ideas  is  the  extraordi- 
nary differences  of  speed  of  evolution  of  humanity  in  different 
epochs.  Apparently,  the  speed  has  increased  enormously  with 
the  lapse  of  time.  The  paleontologists  tell  us,  for  example,  that 
during  the  Third  Interglacial  Period  of  the  world  and  the  Fourth 
Glacial  Period  (the  Lower  Paleolithic),  represented  by  the  Pilt- 
down  and  the  Neanderthal  races,  the  time  that  elapsed  was 
125,000  years ;  yet  the  entire  human  progress  in  arts  of  life  made 
in  that  inconceivably  long  period  is  represented  only  by  improved 
methods  of  chipping  the  surface  of  flints  for  the  making  of  tools.^ 
In  short,  the  evolutionary  changes  in  family  and  property  institu- 
tions, during  the  last  3,000  years,  have  been  vastly  more  numerous 
and  rapid  than  in  the  whole  preceding  400,000  or  500,000  years  of  the 
life  of  the  human  race.  This  being  so,  there  is  little  room  for  assum- 
ing any  inherent  constancy  in  the  operation  of  a  particular  legal  idea. 

In  short,  the  only  constancy,  if  any  is  discovered,  in  evolution 
of  law,  is  constancy  of  cause  and  effect,  not  of  inherent  nature 
of  a  legal  idea. 

(c)  The  third  critical  question  is  this:  Do  these  scholars  as- 
sume universality  of  a  formula  of  evolution  throughout  all  specific 
legal  ideas  f 

1  H.  F.  Oshorn,  "  Men  of  the  Old  Stone  Age  "  (1916),  pp.  15-23. 


Chap.   XXIII.]  PLANETARY   THEORY  535 

Let  us  roughly  enumerate  the  entire  mass  of  principal  legal 
ideas :  Personal  relations,  including  family  and  clan,  marriage, 
parentage,  adoption,  emancipation,  expulsion,  etc. ;  Property,  in- 
cluding ownership,  lease,  mortgage,  succession,  community,  sale, 
etc. ;  Liability,  including  tort,  crime,  contract,  agency,  surety- 
ship, etc. ;  Procedure,  including  judge,  summons,  arrest,  pleading, 
evidence,  judgment,  etc.  Now,  let  us  take  some  of  De  la  Gras- 
serie's  twenty-eight  generalizations  as  to  the  movement  of  legal 
evolution.  These  generalizations  represent,  as  it  were,  identical 
threads  of  evolution  on  which  all  legal  institutions  are  strung.  But 
does  this  learned  investigator  mean  that  these  threads  are  the  same 
and  equally  true,  not  only  in  the  main  trunk  ideas  of  the  law, 
such  as  family  and  property,  but  also  in  each  branch  idea,  such 
as  marriage,  adoption,  succession,  partnership,  etc.?  For  exam- 
ple, take  the  assertion  that  evolution  proceeds  from  the  simple  to 
the  complex.  Is  this  alike  true  for  family  and  clan  law  as  a 
whole  and  for  every  detailed  idea  of  it,  such  as  relationship, 
marriage,  divorce,  and  adoption?  It  is  certainly  not  true  for 
relationships,  nor  for  marriage,  nor  for  adoption ;  it  may  be  true 
for  divorce.  Is  is  alike  true  not  only  for  liability  as  a  whole, 
but  also  for  the  specific  forms  of  liability  such  as  suretyship, 
money  debt,  tort,  warranty  of  property,  etc.?  If  it  is  true  fcr 
liability  in  general,  it  is  hardly  true  for  money  debt,  for  warranty, 
or  for  suretyship.  And  if  it  is  not  thus  universally  true,  where 
and  why  does  it  cease  to  be  trne?  And  if  it  ceases  to  be  true  in 
any  species  of  some  genus  of  legal  idea,  what  becomes  of  its  va- 
lidity as  a  general  or  abstract  truth  ?  Moreover,  since  these  gen- 
eral truths  obviously  differ,  in  that  some  purport  to  apply  in  the 
whole  field  and  some  in  part  only  (such  as  property),  why  are 
some  of  them  universal  and  some  only  partial  ? 

The  warning  is  therefore  pertinent  that  we  cannot  assume  before- 
hand that  such  universality  of  truth  exists  and  will  be  discovered 
in  the  evolution  of  legal  ideas.  All  we  can  assume  is  the  imiversal- 
ity  of  identical  efi^ects  from  identical  causes. 

We  are  now  in  a  position,  with  these  criticisms  in  mind,  to 
consider  the  question : 

L    What  are  possibly  the  most  general  formulas  of  evolution? 

This  inquiry  has  fascinated  the  philosophers  for  centuries.  I 
confess  to  a  skepticism  of  their  hypotheses.  I  will  try  to  demon- 
strate their  unsoundness,  and  the  greater  probability  of  a  rival 
hypothesis. 

We  must  of  course  assist  our  minds  by  analogies  in  the  ma- 


536  PROCESS    OF    LEGAL   EVOLUTION  [Part   III. 

terial  world.  The  philosophers  have  resorted  to  the  analogies  of 
physics  and  physical  forces.  Some  philosophers,  for  example, 
have  imagined  the  path  of  progress  to  be  in  a  simple  undulating 
line;  others  figure  it  as  a  single  line  with  angular  regressions. 
Vico  conceived  it  as  a  simple  circle  returning  upon  itself.  The 
popular  notion  is  that  of  an  ascending  straight  line.  De  Greef 
supposes  a  helix,  or  circular  spiral,  constantly  ascending,  but  re- 
turning over  itself  identically ;  De  la  Grasserie  accepts  this  figure. 
Goethe  pictured  a  helix,  or  circular  spiral,  constantly  ascending 
but  enlarging  itself.^  Goethe's  symbol,  says  Picard,  a  recent 
writer,^  "  seems,  better  than  any  other,  to  take  account  of  the 
immense  variation  of  facts,  especially  in  the  law,  while  marking 
the  destined  tendencies." 

But,  to  me,  that  is  precisely  what  it  seems  not  to  account  for, 
viz.,  the  immense  variety  and  variation  of  forces.  For,  as  al- 
ready pointed  out,  the  evolution  of  legal  ideas  is  affected  by  a 
large  number  of  forces,  great  and  small,  acting  oppositely  or  in 
harmony,  some  here  and  some  there,  in  the  different  parts  of 
law,  in  different  countries,  and  at  different  times.  Hence,  it  is 
simply  impossible  to  assume  that  the  total  path  of  evolution  is 
so  simple  as  even  Goethe's  spiral.  Take  for  example,  the  types 
of  human  mating  —  promiscuity,  polygamy  (in  its  two  forms  of 
polyandry  and  polygyny),  and  monogamy.  Now  the  movements 
to  be  represented  in  our  symbol  must  include  all  communities  in 
all  epochs  of  time,  and  must  represent  all  of  these  three  forms. 
According  to  Goethe's  spiral,  the  movement  could  only  be  from 
one  of  these  forms  through  another  into  the  third,  either  once 
in  all  time,  or  else  over  again  at  each  coil  of  the  spiral ;  and  it 
must  be  the  same  movement  in  all  communities  past,  present  or 
future.  And  yet  we  know  that  a  few  communities  have  been 
arrested  in  their  growth  and  still  practice  polygamy ;  and  we 
have  no  proof  that  no  community  has  circled  through  all  three 
and  started  again  on  promiscuity;  moreover,  we  do  not  posi- 
tively know  that  some  communities  did  not  begin  with  monog- 
amy. And  in  other  parts  of  law  the  simplicity  of  Goethe's  spiral 
is  even  more  incongrous  with  observed  facts. 

A  much  more  plausible  hypothesis,  to  my  mind,  is  the  analogy 
of  the  planetary  system  with  its  numerous  local  interdependent 
motions.  To  apprehend  its  application  to  the  movements  of  legal 
forces,  let  us  call  to  mind  the  principles  of  physics,  as  illustrated 
in  the  ordinary  gyroscope. 

1  [See  the  diagrams  post,  p.  671,]     2  [Post,  chap.  XXVI  of  this  volume.] 


Chap.   XXIII.]  PLANETARY   THEORY  537 

As  you  know,  a  rigid  body  in  space  of  three  dimensions  has 
three  degrees  of  independence  of  motion ;  that  is,  three  axes 
on  which  its  rotation  will  have  no  component  of  motion  about 
either  of  the  other  axes.  Thus,  the  gyrostat  has  three  possible 
directions  of  rotation  about  either  axis  OA  or  axis  OB  or  axis 
O  C,  each  at  right  angles  to  the  other  two.  Every  such  rotation 
will  be  due  to  some  external  force,  and  each  such  external  force 
will  somehow  affect  the  resultant  motion  dependently  upon  the 
other  forces.  For  example,  by  the  pull  of  gravity  the  body  may 
be  forced  to  rotate  about  axis  OA.  Or  by  a  separate  push  or 
torque,  it  may  be  made  to  rotate  around  the  axis  OB.  Or,  still 
a  different  force  might  give  a  third  motion  or  precession  about 
the  axis  OC.  Now  the  speed  and  fluctuations  of  this  new  mo- 
tion will  depend  on  the  relative  measure  of  the  three  or  more 
forces.  These  forces,  being  external  and  independent,  may  vary 
infinitely  from  time  to  time ;  but  the  result  of  their  operation  in 
each  instance  wall  proceed  according  to  certain  discovered  for- 
mulas. 

To  illustrate  concretely,  I  hold  here,  in  my  left  hand,  a  bicycle 
wheel,  free  to  rotate  on  its  axle.  Let  the  axis  of  my  right  arm, 
when  stretched  out  to  my  right,  be  axis  O  A ;  let  the  axis  of  my 
left  arm,  stretched  out  directly  in  front  of  me,  and  holding  the 
axle  of  the  wheel  prolonging  my  left  arm,  be  axis  O  B ;  and  let 
my  body,  upright  from  the  floor,  be  axis  OC.  Now  (1)  with 
the  wheel  thus  extended,  the  force  of  gravity  is  pulling  it  down- 
wards, with  a  rotation  around  axis  O  A ;  call  this  force  X ;  but 
the  pull  of  my  left  hand  counteracts  the  force  momentarily  and 
holds  it  up ;  call  this  X' ;  if  the  pull  or  lift  of  the  left  hand,  X', 
is  removed,  the  wheel  falls  by  gravity,  X,  i.e.^  rotates  around 
axis  O  A.  (2)  Again,  another  external  force  applied  to  the  wheel 
at  the  rim  will  produce  rotation  left-right  around  the  left  arm, 
axis  O  B ;  call  this  force  Y ;  and  an  opposite  force  would  cause 
its  rotation  right-left  around  the  same  axis,  clock-wise  to  the 
spectator;  call  this  Y.  (3)  Again,  a  third  force,  applied  to  the 
wheel,  would  cause  its  rotation  east- west  around  the  upright 
axis  of  the  holder's  body,  O  C ;  while  an  opposite  force  would 
cause  a  corresponding  rotation  west-east  around  the  same  axis; 
call  these  Z  and  Z'.  And  the  simultaneous  application  of  either 
of  these  latter  two  opposite  forces,  Y  and  Y',  or  Z  and  Z',  would 
leave  the  wheel  stationary,  as  in  the  case  of  X  and  X'.  Now 
one  of  the  discovered  laws  of  such  forces  is  this :  If,  while  gravity 
alone,  the  force  X,  is  operating  on  the  wheel  (thus  held  out  on 


538  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

the  left  arm)  to  rotate  it  downwards  around  axis  OA,  another 
force,  Y,  is  applied  to  rotate  it  left-right  (against  the  clock) 
around  the  left-arm  axis  OB,  the  entire  wheel  takes  on  also  a 
rotation  east-west  around  the  upright  axis  O  C  (the  body  of  the 
holder).  And  the  more  rapid  the  rotation  around  O  B,  the  slower 
the  rotation  around  O  C.  And  if  the  point  of  support  be  shifted, 
by  transferring  the  hand  from  one  side  to  the  other  of  the  wheel, 
so  that  the  direction  of  the  O  A  rotation  (due  to  the  pull  of  gravity, 
force  X)  is  reversed,  then  also  the  direction  of  the  rotation  around 
axis  O  C  is  reversed  from  east-west  to  west-east ;  and  yet  the 
rotation  of  the  wheel  around  0  B  continues  exactly  as  before. 

If,  then  we  ask,  What  is  the  path  of  motion  of  a  given  particle 
of  matter,  M,  in  the  wheel,  when  acted  upon  by  force  Y?  that 
path  superficially  seems  to  be  always  a  simple  circle,  going  around 
axis  O  B  as  a  center.  But  if  we  add  thereto  the  facts  that  force 
X,  or  gravity,  is  acting  to  pull  the  particle  around  axis  O  A,  and 
that  no  force  X',  or  uplift,  is  counteracting  gravity,  and  that  no 
force  of  friction  or  other  obstacle  is  preventing  motion  around 
axis  O  C,  we  find  that  in  fact  the  true  path  of  the  given  particle, 
M,  is  not  that  simple  circle,  but  is  a  complex  curve,  determinable 
by  a  mathematical  formula  which  takes  into  account  all  the  above 
forces  and  their  quantities.  And  if  we  add  to  our  reckoning  the 
periodical  shifting  of  the  center  of  gravity,  from  one  side  of  the 
wheel  to  the  other  (due  to  shifting  the  location  of  the  hand),  we 
find  that  the  path  of  the  particle  M  becomes  still  more  complex, 
while  remaining  symmetrical  and  regular,  so  long  as  none  of  the 
forces  are  altered. 

What,  then,  is  the  lesson  of  this  analogy  for  legal  evolution? 
If  a  spoke  of  this  wheel  represents  an  institution,  let  us  say  de- 
scent of  property  after  death  to  lineals  instead  of  to  collateral 
relatives,  our  superficial  observation,  finding  it  in  its  first  posi- 
tion, is  that  the  institution  is  stationary ;  and  further,  that  when 
a  force  Y  (let  us  say  migration  of  races)  is  applied,  its  motion 
becomes  circular,  against  the  clock,  around  OB.  But  we  must 
notice  further  that  in  both  cases  we  have  omitted  to  reckon  that 
gravity  (let  us  say  religion  in  this  case),  force  X,  is  operating 
to  pull  the  institution  around  OA,  but  is  counteracted  by  the 
upward  lift  of  the  hand,  force  X'  (let  us  say  the  political  power 
of  kings) ;  and  that  as  soon  as  force  X'  is  removed,  the  motion 
of  the  spoke  is  now  in  reality  a  complex  one,  due  to  recession 
east-west  around  axis  O  C ;  and  that  the  further  change  of  the 
centre  of  gravity  (let  us  say  the  economic  change  from  a  tropical 


Chap.   XXIII. J  PLANETARY   THEORY  539 

country  to  an  arid  or  cold  country)  produces  another  change  of 
motion  in  the  institution.  Now,  these  several  forces  are  all  ex- 
ternal to  the  institution  itself;  and  they  may  themselves  all  be 
subject  to  regular  and  periodic  operation,  and  not  to  arbitrary 
or  whimsical  happening,  such  as  is  due  to  the  momentary  choice  of 
the  lecturer.  Moreover,  these  forces  Vary  widely  in  different 
times  and  places. 

So  that,  if  we  ask  again.  What  is  the  evolution  of  a  given  legal 
institution  ?  we  now  perceive  that,  even  with  these  simple  elements 
exemplified  in  a  wheel  held  by  the  lecturer,  the  path  can  never 
be  a  simple  circle,  or  any  elementary  curve,  but  must  be  at  least 
a  complex  of  many  curves,  original  and  different  for  each  insti- 
tution. 

Moreover,  w^hile  all  this  is  going  on,  with  only  these  few  ele- 
ments assumed  as  representing  the  whole,  there  is  besides  a  larger 
body,  to  which  the  first  and  smaller  one  is  affixed  (like  the  build- 
ing in  which  the  lecturer  is),  and  the  larger  body  may  also  be 
moving  independently,  and  moving  in  any  one  of  the  three  pri- 
mary directions,  and  subject  to  still  other  forces.  And  further- 
more, this  larger  body  may  itself  again  be  part  of  a  still  larger 
system,  one  of  several  bodies,  and  the  larger  system  will  have  its 
own  motions  under  its  own  forces.  In  the  total  cosmos  of  bodies, 
the  motions  of  the  smaller  bodies  will  be  affected  by  the  motions 
of  each  of  the  larger  systems,  though  the  larger  ones  may  not 
be  appreciably  affected  by  the  smaller  ones.  And  the  motions 
of  one  or  more  of  the  smaller  bodies  may  reverse  or  cease  while 
all  others  continue.  In  short,  we  shall  have  a  planetary  system, 
full  of  endless  possibilities. 

The  analogy  of  this  planetary  system  to  the  law  will  not  be 
necessarily  identical ;  no  physical  analogy  would  be.  But  at  least 
it  shows  how  such  complexities  are  consistent  with  regular  evo- 
lution, i.e.,  with  constancy  of  change  and  relation  of  forces  by 
cause  and  effect,  in  a  set  of  legal  ideas  forming  part  of  a  whole 
system.  And  the  complexities  of  inter-related  legal  movements 
are  certainly  no  less  than  those  of  the  planetary  system,  but  pre- 
sumably vastly  greater ;  for  human  life  is  but  a  part  of  the  terres- 
trial mass,  and  law  is  but  part  of  human  life,  and  the  details  of 
their  forces  and  phenomena  are  obviously  more  numerous  than 
the  grand  forces  of  the  total  mass. 

Take,  for  an  example,  the  evolution  of  the  last  will  or  testa- 
ment. Sir  Henry  Maine  and  others  have  attempted  to  disen- 
tangle the  various  elements  of  its  growth  in  the  law  of  Rome, 


540  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

Greece,  Germania,  and  India.  What  is  certain  is  that  in  a  primi- 
tive stage  there  is  no  will,  and  that  at  a  later  stage  the  will  is 
recognized.  But  on  analyzing  this  net  line  of  motion,  so  to 
speak,  we  find  that  it  is  the  direct  resultant  of  at  least  several 
forces ;  and  that  all  of  these  are  affected  by  still  other  forces  pro- 
ceeding from  still  larger  independent  legal  institutions.  In  the 
first  place,  the  force  tending  to  validate  the  paternal  last  will  is 
directly  modified  by  several  minor  forces ;  there  are  the  claims 
of  the  blood  relatives,  of  the  wife,  and  of  children ;  and  further- 
more the  distinction  between  agnate  (male  line)  and  cognate 
relatives,  and  between  male  and  female  descendants,  between 
polygamy  and  monogamy,  will  here  produce  minor  variations 
according  to  time  and  place.  Then,  outside  these,  are  the  larger 
forces  represented  by  the  system  of  religion,  of  economics,  and 
of  property.  Religion  requires  that  the  family  worship,  the  an- 
cestral rites,  shall  be  continued  ;  "religion  prescribes  ",  said  Cicero, 
"  that  the  property  and  the  worship  of  a  family  shall  be  insepara- 
ble"; "he  who  inherits",  said  the  Hindu  Laws  of  Manu,  "is 
bound  to  make  offerings  upon  the  tomb."  And  so  the  Hindu's 
only  expedient,  and  a  common  one  in  all  peoples,  for  transmitting 
the  estate  where  no  blood-child  existed,  was  the  expedient  of  arti- 
ficial adoption ;  thus  the  limitations  of  the  principle  of  adoption 
affected  the  path  of  evolution  of  the  testament.  This  principle 
of  adoption  is  itself  part  of  another  sphere  of  forces  involving 
artificial  relationship;  of  which  the  variety  known  as  blood  fra- 
ternity has  now  died  out.  But,  furthermore,  the  economic  system 
sometimes  distinguished  between  land  or  house  and  the  few 
primitive  movables;  for  example,  in  some  of  our  own  surviving 
American  Indian  tribes,  a  man's  movable  property  is  all  that  he 
owns  personally,  and  it  is  destroyed  at  his  death;  it  cannot  be 
inherited,  and  therefore  it  cannot  be  willed ;  moreover,  the  con- 
munal  property,  or  land,  continues,  just  as  before,  to  be  owned 
by  the  community;  the  individual  has  nothing  to  will.  And  so 
we  find  a  subordinate  eddy  in  the  limitations  upon  testament, 
viz.,  that  certain  properties  cannot  be  included  ;  then  at  a  later 
stage,  they  may  be  included  by  consent  of  relatives ;  and  finally 
without  such  consent.  Still,  further,  the  mode  of  transfer  of 
property  affected  the  movement  of  the  evolution  of  the  will ;  for 
in  Rome  the  patrician  will,  recorded  before  the  Comitia  Curiata, 
was  a  variety  of  adoption  but  disappeared  gradually,  while  the 
plebeian  will,  which  proved  the  permanent  form,  was  made  by  a 
formal  sale  or  mancipatio.     And  finally,  in  Germanic  law,  both 


Chap.   XXIII.]  PLANETARY   THEORY  541 

continental  and  English,  the  whole  movement  of  testamentary 
evolution  receives  new  turns  by  the  local  ideas  of  transfer,  includ- 
ing the  salman,  the  feoffee  to  uses,  and  the  executor;  while  the 
Roman  example,  arriving  in  different  countries  of  Western  Eu- 
rope during  different  centuries,  introduced  a  new  force,  that  of 
imitation,  which  added  still  other  variations.  This  imitation  of 
the  Roman  law,  in  European  history  since  600  a.d.,  is  like  the 
addition  of  the  magnetism  or  gravitation  of  a  great  central  sun, 
added  outside  the  system,  which  exerts  a  modifying  force  on 
every  legal  institution  native  to  each  of  the  smaller  spheres. 

My  summary  is,  then,  that  no  simple  spiral  will  serve  as  an 
analogy  ;  that  no  less  complex  an  analogy  than  the  planetary  sys- 
tem will  serve ;  that  this  analogy  is  a  useful  guide  in  our  studies, 
because  the  gyroscopic  inter-action  of  planetary  forces  reveals 
to  us  the  inevitableness  of  similar  inter-actions  in  the  forces  af- 
fecting law^s;  and  that  therefore  we  cannot  expect  to  trace  the 
evolution  of  a  single  legal  institution  without  conceiving  of  it 
as  a  body  in  motion  produced  by  a  force,  this  motion  modified 
by  other  immediate  forces,  and  this  body  and  its  motions  being 
one  part  only  of  a  larger  body  which  is  itself  in  one  or  more  motions 
produced  by  other  forces  and  modifying  the  first  motions;  and 
this  system  as  one  part  only  of  a  larger  system  of  forces  and 
motions ;  and  so  on,  indefinitely. 


Chapter  XXIV 

DEGENERATIVE   EVOLUTION  ^ 

I.  Universality  op  Degenerative  Evolution 
(1)  Degeneration  in  the  Development  of  Institutions  and  Organs 


§  1.  Introduction.  Degeneration 
and  Progress. 

§  2.  In  the  Evolution  of  Institu- 
tions    All    Modification     Is 


Necessarily  Accompanied  by 
Degeneration. 
§  3.    Modification    of    Similar    In- 
stitutions in  Different  Social 
Groups. 


(II)    Degeneration  in  the  Evolution  of  Organisms  and  Societies 


§  4.   Survivals  Exist  in  All   Kinds 
of  Societies. 


§  5.    Instances      of      Survival 

Various  Groups. 
§  6.   Summary  and  Conclusions. 


II.   The  Path  of  Degenerative  Evolution 
(III)    The  Supposed  Law  that  Degeneration  Retraces  the  Steps  of  Progress 


§  7.    Retrogression. 

§  8.  The  Path  of  Degeneration  in 
Sociology. 

§  9.  A  Criticism  of  the  Supposed 
Inverse  Path  of  Degenera- 
tion. 


§  10.    The    Irreversibility    of    De- 
generative Evolution. 
§11.    Disappeared  Institutions. 
§  12.    Summary  and  Conclusions. 


III.  Causes  of  Degenerative  Evolution 
(IV)  Atrophy  of  Organs  and  Institutions 
§  13.   The  Factors  of  Atrophy.  |  §  14.   Atrophy  of  Institutions. 

(V)    The  Causes  of  the  Persistence  of  Organs  or  Institutions  without  Function 


§  15.   Survival  of  Organs. 
§  16.    Survival  of  Institutions. 
§  17.    The    Integral   Persistence   of 
an  Institution. 


18.   Survival  of  Institutions  in  a 
Reduced  State. 


IV.  Resume  and  Conclusions 

§  19.    Resume. 

(VI)    General  Conclusions 

1  [By.  Jean  Demoor,  agrege  of  the  Free  University  of  Brussels,  Jean 
Mass  ART,  charge  de  cours  of  the  Free  University  of  Brussels,  and  ^mile 
Vandervelde,  Professor  at  the  Institute  of  Hautes  Etudes  of  Brussels. 

This  translation  is  by  Mrs.  Chalmers  Mitchell,  and  was  pubHshed  by 

542 


Chap.  XXIV.]  DEGENERATION  543 

I.    Universality  of  Degenerative  Evolution 
(I)    Degeneration  in  the  Devel-opTuent  of  Institutions  and  Organs 

§1.  Introduction.  Degeneration  and  Progress.  The  term  "  evo- 
lution "  does  not  in  itself  convey  an  idea  of  either  progress  or 
degeneration.  It  comprises  all  the  changes  undergone  by  an 
organism  or  society  independently  of  the  question  as  to  whether 
these  changes  are  favorable  or  otherwise.  The  evolution  of  an 
organ,  or  of  the  different  parts  of  an  organ,  is  degenerative  if  it 
tends  to  the  ultimate  decay  of  that  organ  or  of  its  parts,  and 
the  facts  are  shown  by  means  of  arranging  series  of  fossils  or  living 
forms,  and  comparing  them.  Evolution  is  progressive  if  it  tends 
to  the  development  of  an  organ  or  to  the  formation  of  a  new  organ. 

These  definitions  may  be  applied  —  mutatis  mutandis  —  to  the 
changes  undergone  by  societies  and  institutions  or  their  constit- 
uent parts. 

The  ideas  of  progress  and  of  degeneration  seem  at  first  sight 
to  relate  to  diametrically  opposite  phenomena.  The  term  "  pro- 
gressive evolution  "  conveys  the  ideas  of  progress,  development, 
improvement,  of  increasing  differentiation,  and  of  the  progressive 
co-ordination  of  the  functions  or  organs  thus  differentiated. 

Degenerative  evolution,  on  the  other  hand,  conveys  the  ideas 
of  decline,  of  decay,  and  of  degeneration,  such  as  the  atrophy 
of  the  organs  of  locomotion  in  Sacculina,  the  degeneration  of  the 
leaves  of  parasitic  plants,  or  the  dissolution  of  corporate  bodies 
in  a  declining  state. 

We  propose  to  show,  however,  that  these  two  ideas,  w^hich 
at  first  sight  seem  contradictory  and  mutually  exclusive,  are  found, 
on  a  strict  examination  of  the  facts,  to  interpenetrate  and  complete 
each  other.  Degeneration  and  progress  will  appear  as  the  two 
sides  of  one  whole,  or  as  two  aspects  of  the  same  evolution,  and 
it  will  be  seen  that  all  progress  must  necessarily  be  attended  by 
degeneration. 

§  2.  In  the  Evolution  of  Institutions  all  Modification  is  Neces- 
sarily Accompanied  by  Degeneration.  Institutions  may  be  re- 
garded from  two  distinct  standpoints  —  from  a  statical  point  of 
view,  as  they  exist  in  the  same  society,  and  from  the  dynamical 
point  of  view,  as  existing  from  epoch  to  epoch,  and  from  society 

D.  Appleton  and  Company,  New  York,  1899,  "International  Scientific 
Series",  No.  79.  These  selections  are  reprinted  from  pp.  21-22,  90,  98- 
115,  151-161,  170-177,205-221,227-229,  247,  251,  281-282,292,  298-299, 
306,  317-318,  of  the  translated  volume.] 


544  PROCESS    OF    LEGAL   EVOLUTION  [Part  III. 

to  society.  In  both  cases,  we  shall  arrive  at  the  same  conclusion 
as  in  biology,  that  all  modification  entails  degeneration. 

§  3.  Modification  of  Similar  Institutions  in  Different  Social 
Groups.  According  to  the  primitive  constitution  of  things,  the 
land  occupied  by  a  tribe  or  clan  was  regarded  as  res  nullius,  and 
consequently  at  the  free  disposal  of  all  the  members  of  the  com- 
munity.^ 

With  the  increase  of  population,  the  value  of  land  rose,  and 
the  state  of  things  became  modified,  the  rights  of  groups  and 
individuals  becoming  consolidated  and  at  the  same  time  limited. 
Then  arose  gradually  or  simultaneously  the  following  various 
forms  of  landed  property :  (1)  Land  held  by  families ;  (2)  by 
villages;  (3)  feudal  property;  (4)  communal  or  public  prop- 
erty; (5)  property  belonging  to  corporations;  (6)  private 
property. 

Family,  village,  and  feudal  property  represent,  among  certain 
people,  three  successive  stages  in  the  evolution  of  property.  When 
the  old  system  of  land  tenure  was  abolished,  private  and  com- 
munal or  public  property  began  to  develop  simultaneously. 

While  certain  lands  which  were  free  to  all  the  inhabitants  be- 
came transformed  into  collective  property,  other  such  lands  lost 
their  public  character  and  became  private  property.  In  the  first 
case,  the  communes,  on  being  called  upon  to  fulfil  functions  of 
increasing  complexity,  proceeded  to  transform  all  or  part  of  the 
properties  concerned  into  patrimonial  property  or  property  for 
the  use  of  the  people  {communaux,  allmenden)  ? 

In  the  second  case  the  property  of  the  old  community  became 
the  joint  but  undivided  property  of  the  members  of  the  corpora- 
tion; when,  however,  for  purposes  of  cultivation  it  became 
necessary  to  divide  it,  the  corporative  property  became  trans- 
formed into  private  property. 

On  reviewing  in  succession  these  various  phases  in  the  evolu- 
tion of  landed  property,  it  will  clearly  be  seen  that  modification 
has  everywhere  been  attended  by  degeneration. 

1  y.  Maurer,  "Feld-  Wald-  iind  Weidegemeinschaft." 

2  Giron,  "Le  droit  administratif  de  la  Belgique",  No.  683:  ** There 
were  three  kinds  of  communal  property : 

"(a)  Property  directly  appropriated  to  the  use  of  the  public,  such  as 
public  squares,  streets,  churches,  etc. 

"(6)  Communal  property  properly  speaking,  i.e.  the  real  estate  and 
rights  belonging  to  the  tribune  and  to  which  the  people  were  entitled  to  a 
personal  share.  These  consisted  of  the  forest  land,  rights  of  appanage, 
waste  land,  moorland,  and  the  rights  of  pasturing. 

"  (c)  Patrimonial  property,  i.e.  that  held  by  the  commune,  the  revenue 
from  which  went  to  the  commune  to  defray  the  expenses  of  administra- 


Chap.  XXIV.]  DEGENERATION  545 

1 .  (Family  property  —  Montenegro.)  Of  all  the  Balkan  States, 
Montenegro  —  owing  to  the  natural  barriers  which  separate  it 
from  the  rest  of  Europe  —  has  best  preserved  its  archaic  institu- 
tions. Here,  side  by  side  with  modern  institutions,  may  be  found 
the  old  system  of  division  into  forty-two  tribes  (pleme)  which 
are  subdivided  into  clans  or  confraternities  (brastvo)  and  into 
patriarchal  families  (zadrugas  and  inokosnas).^  The  develop- 
ment of  modern  political  and  judicial  institutions  has,  however, 
considerably  lessened  the  importance  of  the  plemes  and  the  brast- 
vos,  so  that  progression  in  this  direction  has  not  been  effected 
without  accompanying  degeneration. 

With  regard  to  property,  the  two  different  forms  of  family 
tenure  have  been  substituted  for  what  was  formerly  the  tribal 
or  clan  system.  Of  the  former  collective  property  of  the  clan, 
there  only  remain  the  following  traces  :  — 

(1)  Property  rights  held  over  certain  portions  of  land  —  gener- 
ally forest  or  waste  land. 

(2)  The  right  of  pre-emption  in  favor  of  members  of  the  brastvo 
or  of  those  related  to  a  member  within  the  first  six  degrees  of 
lineal  descent.^ 

(3)  The  right  of  allotting  to  relatives  their  share  in  the  duties 
of  helping  widows  and  paupers  in  their  work.  The  workers  in 
this  case  receive  no  payment,  neither  have  they  any  right  to  de- 
mand maintenance. 

tion.  It  included  timber  land,  arable  land,  house  property,  market- 
places, etc." 

^  For  information  about  the  common  or  differential  characters  of  the 
zadruga  and  the  inokosna,  see  Ardent,  "La  Famille zougoslave  au  Monte- 
negro "  ("Reforme  sociale",  17th  October,  1888). 

2  Article  48  of  the  Civil  Code  of  1888,  drawn  up  by  Bogisic  in  all  pos- 
sible accordance  with  "the  excellent  customs"  of  Montenegro,  begins 
with  the  statement  that  "the  right  of  pre-emption,  a  privilege  which 
has  so  long  been  enjoyed  by  the  members  of  the  brastvo,  by  persons 
whose  lands  adjoin,  and  by  the  members  of  the  village  and  pleme,  still 
flourishes,  and  will  probably  continue  to  do  so." 

Bogisic  adds  that,  in  accordance  with  this  right,  "any  person  desiring 
to  sell  his  land,  or  any  kind  of  real  estate  belonging  to  him,  is  constrained, 
according  to  the  established  custom  in  such  cases,  to  first  offer  it  in  legal 
order  to  those  persons  who  enjoy  the  right  of  pre-emption,  in  order  to 
give  them  an  opportunity  of  purchasing  it  at  the  price  at  which  it  is  to  be 
offered  to  the  public." 

Article  49,  sec.  1,  gives  a  list  setting  out  the  order  of  precedence  of 
those  who  enjoy  the  right  of  pre-emption. 

1.  Members  of  the  brastvo  within  the  first  six  lineal  degrees  of  descent. 

2.  Persons  owning  adjoining  lands.        f  Transference,  of  recent  origin, 

3.  The  other  members  of  the  village.     I      to      neighbors      of     rights 

4.  The  other  members  of  the  pleme.      |      originally  confined  to  rela- 

[      tives. 
If  none  of  those  entitled  to  the  first  offer  desire  to  purchase,  the  owner 
may  then  sell  his  property  to  any  other  Montenegrin. 


546  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

Still  rarer  are  vestiges  of  the  collective  property  of  the  pleme. 
A  few  portions  of  land,  however,  still  belong  to  that  body,  and  it 
is  probably  a  survival  of  this  ancient  condition  of  things  that 
foreigners  are  not  permitted  to  acquire  landed  property  in  Mon- 
tenegro,^ and  that  the  public  are  unrestricted  in  the  right  to  hunt 
over  any  ground  they  choose.^ 

2.  (Village  property  —  Russia.)  Village  communes  and  the 
periodical  division  of  land  —  the  mir  of  Russia  or  the  dessah  of 
Java,  for  instance  —  do  not  represent  types  of  a  primitive  system, 
but  are  the  outcome  of  a  whole  series  of  modifications.  Kovalev- 
sky  traces  the  evolution  of  the  present  system  in  Russia  through 
the  following  principal  stages  :  — 

(1)  The  joint  use  of  land  by  the  members  of  one  family  group 
(pechische),  corresponding  to  the  zadruga  of  the  Southern  Servians, 
and  sometimes  comprised  of  more  than  forty  persons. 

(2)  The  division  of  the  mother-family  into  separate  house- 
holds, thus  forming  a  village  community,  and  the  temporary 
allotment  of  land  of  the  community  among  the  separate  families. 

(3)  The  alienation  of  all  or  part  of  the  allotments  assigned 
to  the  families  and  the  constitution  of  agricultural  communes  no 
longer  necessarily  consisting  exclusively  of  persons  akin. 

(4)  The  periodical  division  of  land,  which,  as  the  population 
increased,  was  instituted  with  a  view  to  re-establishing  an  equal 
distribution.  This  system  of  division,  which  was  established 
gradually,  only  dealt  with  the  more  valuable  sort  of  land,  such  as 
meadows  and  arable  land.  The  forest  land  and  pasturage,  that 
at  least  which  was  not  already  annexed  by  the  lords  of  the  manor, 
was  free  to  all. 

This  transformation  of  family  communities  into  village  com- 
munities was  not  effected  without  accompanying  degeneration. 
The  administrative  institutions  of  the  family  group  disappeared, 
and  the  rights  of  pre-emption  in  favor  of  blood  relations  were 
gradually  replaced  by  village  rights.  The  importance  of  the 
family,  regarded  as  an  economic  group,  decreased  in  proportion 
with  the  increase  of  the  importance  of  the  village. 

In  some  places,  however,  and  especially  among  the  Ossetes 

1  The  old  Montenegrin  law  relating  to  landed  property,  which  pro- 
scribes the  purchase  of  land  in  Montenegro  by  any  but  Montenegrins,  is 
still  in  full  force.  No  transaction  in  violation  of  it  is  legally  binding 
{Dickel,  "fitude  sur  le  nouveau  Code  civil  montenegrin"). 

2  Throughout  the  southern  Slavonic  countries  hunting  is  the  free  right 
of  all.  Any  one  may  hunt  where  and  how  he  pleases,  not  only  on  public 
ground,  among  the  mountains  and  forests,  but  upon  private  property, 
whether  cultivated  or  not  {Dickel,  p.  36). 


Chap.  XXIV.]  DEGENERATION  547 

who  inhabit  the  valleys  of  the  Caucasus,  the  old  system  may  still 
be  found.  There,  at  any  rate  up  to  within  the  last  few  years,  the 
aouls  (villages)  are  principally  comprised  of  families  holding  land 
in  joint  tenure,  frequently  sharing  all  things  in  common.  These 
aouls  are  very  rarely  met  with  nowadays.^ 

Besides  these  family  communities,  there  yet  remain  among 
the  Ossetes,  as  in  Montenegro,  numerous  vestiges  of  the  primi- 
tive system  of  clan  property,  i.e.  the  appropriation  of  certain  por- 
tions of  land  by  the  members  of  the  clan,  the  common  use  of  pastu- 
rage and  forest  land,  the  enforced  participation  in  certain  public 
works,  and  the  rights  of  heritage  over  unclaimed  land,  or  unap- 
propriated property  which  had  become  so  owing  to  the  lapse  of 
some  "  feu  "  or  by  the  extinction  of  a  family  community.^ 

3.  (Feudal  property  —  England.)  The  introduction  of  the 
feudal  system  into  England  resulted  in  the  substitution  of  a  new 
method  of  grouping,  in  place  of  the  old  agrarian  communities. 
These  new  groups,  like  the  tow^nships  of  earlier  times,  consisted 
of  a  complete  organization  occupying  definite  boundaries.  In- 
stead, however,  of  being  a  family  group  administrated  by  a  dem- 
ocratic organization  and  government,  this  new  system,  which 
Maine  calls  a  "  manorial  group  ",  consisted  of  a  tenantry  auto- 
cratically grouped  together  and  governed  by  a  feudal  chief  — 
the  Lord  or  Seignior.^ 

Although  it  cannot  definitely  be  asserted  that  each  one  of 
these  manorial  groups  was  developed  from  what  had  formerly 
been  a  village  community,  yet  it  is  evident  that  such  was  fre- 
quently the  case,  and  that  the  transformation  was  accompanied 
by  partial  degeneration.     For  instance  :  — 

(1)  The  assembly  of  the  inhabitants  of  the  township,  which 
■formerly  exercised  complete  control  over  all  legal  and  adminis- 
trative affairs,  disappeared,  and  in  its  place  sprang  up  the  mano- 
rial court  which  was  comprised  of  a  limited  number  of  tenants 
and  presided  over  by  the  lord  of  the  manor  or  his  representative. 

(2)  The  collective  property  became  absorbed,  or  was  at  least 
considerably  reduced  by  the  acquisitions  of  the  lord  of  the  manor, 

^  See  Kovalevsky,  "Coutume  contemporaine  et  loi  ancienne'*,  p.  42, 
Paris,  Larose,  1893. 

2  See  Kovalevsky,  "Couturae  contemporaine  et  loi  ancienne",  pp.  68 
and  following,  Paris,  Larose,  1893. 

3  See  Maine,  "Les  Communautes  de  village";  "fitudes  sur  THistoire 
du  Droit";  "L'Ancien  Droit  et  la  coutume  ancienne";  J^mile  Lnvcleye, 
" Les  Communautes  do  famille  et  de  village"  (Revue  d'^conomie  politique, 
1888,  pp.  350  and  following);  Vinogradoff,  "Villainage  in  England", 
Oxford  and  London,  1892. 


548  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

or  by  divisions  effected  by  members  of  the  communes.  The  old 
system  of  collective  property  held  by  townships  did  not,  how- 
ever, wholly  disappear. 

(a)  The  "  rights  of  usage  ''  in  regard  to  waste  land,  forest  and 
moors  (such  as  the  use  of  unclaimed  pasturage,  the  cutting  of 
timbers,  etc.),  were  still  enjoyed  by  the  old  inhabitants,  and  even 
in  some  instances  by  other  persons  upon  whom  these  ''  rights  " 
had  been  conferred. 

(b)  With  regard  to  meadow  land,  sometimes  the  lord  of  the 
manor  put  up  enclosures  for  his  own  benefit  from  Candlemas  till 
midsummer,  the  rights  of  the  community  being  established  dur- 
ing the  remainder  of  the  year  only;  sometimes  it  was  the  com- 
munity who  put  up  the  enclosures,  when  the  lord  of  the  manor 
was  only  entitled  to  the  use  of  the  land  during  the  intervals; 
sometimes  pasturage  was  held  as  the  joint  property  of  the  old 
community,  or  rather  of  their  descendants  the  tenants;  but  as 
a  rule  it  was  regarded  as  more  or  less  common  property.  The 
best  meadow  land  was  divided  up  into  what  were  termed  "  deals  " 
and  apportioned  by  drawing  lots. 

(c)  With  regard  to  arable  land,  the  method  of  appropriating 
and  cultivating  the  land  occupied  by  the  tenants  retained  many 
traces  of  the  village  system  of  collective  property.  For  instance : 
the  enforced  rotation  of  crops ;  the  periodical  division  of  land  in 
certain  parts  of  the  country;  the  division  of  land  into  three 
breaks  in  other  places;  and  the  destruction  after  the  harvest 
of  the  enclosures  surrounding  the  crops,  after  which  the  land  was 
used  for  the  herding  of  cattle. 

These  survivals  may  yet  be  found  in  some  districts  of  modern 
England,  in  spite  of  all  the  great  changes  in  the  English  system 
of  property;  changes  such  as  the  disappearance  of  the  serf  and 
the  appearance  of  yeomen  in  the  course  of  the  thirteenth  to  the 
sixteenth  century,  and  the  dispossession  of  the  yeoman  in  favor 
of  the  growth  of  large  properties  in  the  course  of  the  sixteenth 
to  the  eighteenth  century. 

4.  (Public  or  collective  property  —  Switzerland.)  It  is  easy 
in  Switzerland  to  follow  the  course  of  the  transformation  into 
political  communes  of  the  old  system  of  economic  communes, 
whether  village  or  manorial. 

In  the  mountainous  parts  of  Switzerland  this  transformation 
is  still  incomplete,  and  side  by  side  with  the  modern  commune 
may  be  seen  the  old  form  of  collective  property,  though  in  a  more 
or  less  advanced  stage  of  degeneration. 


Chap.   XXI V]  DEGENERATION  549 

The  successive  stages  of  this  evolution  may  be  enumerated  as 
follows :  — 

(1)  The  village  communities  (the  Feld-  WaM-  und  Weidegemein- 
schaft  of  von  IMaurer). 

(2)  The  collective  property  of  the  inhabitants,  whether  feudal, 
free,  or  partly  both  (Gemischte  Gemeinde). 

The  Feldgemeimchaft  completely  disappeared  after  the  Refor- 
mation, the  collective  land  of  the  community,  the  joint  use  of 
which  was  the  right  of  all  the  inhabitants,  being  restricted  to  mere 
waste  land,  forest  land,  and  pasturage  (Allmend)} 

(3)  The  institution  of  Biirgergemeinde  —  public  corporations  — 
the  members  of  which  enjoyed  the  sole  use  of  the  Allmend,  and 
upon  whom  fell  the  costs  of  local  administration;  as  the  popu- 
lation increased,  the  conditions  of  admission  into  the  Burger- 
gemeinde  become  more  and  more  strict. 

(4)  The  creation  of  FAmvohner gemeinde,  or  political  com- 
munes, established  side  by  side  with  the  old  system,  and  in  many 
localities  eventually  taking  its  place.  In  these  the  responsibili- 
ties of  the  former  system  were  assumed,  and  part  or  the  whole 
of  the  collective  property  w^as  appropriated.  Where  the  old  com- 
munities still  survive,  they  have,  as  a  rule,  ceased  to  exercise  the 
greater  part  of  their  original  functions.  In  the  Cantons  of  Berne 
and  Saint-Gall,  for  instance,  the  old  communities  have  delivered 
up  the  greater  part  of  their  possessions  to  the  political  communes 
to  provide  for  the  expenses  of  general  administration.  Their 
only  now  remaining  function  is  the  administration  of  the  small 
remainder  of  their  patrimony  and  the  maintenance  of  the  indi- 
gent members  of  the  community. 

Independently  of  this  decay  of  the  old  system  of  communities, 
the  formation  of  political  communes  was  attended  by  other  phe- 
nomena of  degeneration :  — 

(1)  The  suppression  of  all  or  part  of  the  "  rights  of  usage  " 
enjoyed  by  the  inhabitants. 

The  Eimvohner gemeinde,  being  called  upon  to  discharge  more 
and  more  onerous  and  complex  functions,  were  obliged  to  either 
partially  or  wholly  transform  the  communal  possessions,  to  the 

^  The  Allmend,  in  the  primitive  sense  of  the  word,  meant  that  part 
of  the  old  collective  property  held  in  joint  tenancy  by  a  community  of 
inhabitants  or  any  other  public  body,  the  use  of  which  was  limited  to 
those  who  had  a  personal  title  to  it.  This  primitive  meaning  has  changed 
in  Switzerland  —  excepting  in  the  Canton  of  Schwyz  —  owing  to  the 
changes  in  the  institution  itself  (see  Miaskowski,  "Die  Schweitzerische 
Allmend  in  ihrer  geschiehtlichen  Entwickelung,  von  xiii.  Jahrhundert  bis 
zum  Gegenwart"). 


550  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

personal  use  of  which  the  people  were  entitled,  into  property 
appropriated  to  the  use  of  the  public,  either  directly  (ix.  into 
churches,  teaching  institutions,  etc.)  or  indirectly,  as  a  means 
of  obtaining  a  revenue  (Enverbsquelle) . 

(2)   The  decrease  in  collective  property. 

Many  of  the  Burger gemeinde,  although  no  longer  discharging 
public  functions,  retained  part  of  their  estates,  w^hich  were  held 
by  the  members  in  joint  tenancy.  On  the  other  hand,  as  the 
increased  population  necessitated  the  cultivation  of  the  Allmend, 
the  original  "right  of  usage"  resulted  in  many  instances  in  a  trans- 
formation of  the  land  into  private  property. 

This  transformation,  however,  was  not  always  complete,  and 
all  the  intermediate  stages  may  be  traced  between  the  old  collec- 
tive tenure  and  the  appropriation  by  individuals. 

5.  (Corporative  property  —  Belgium.)  Here  we  will  limit  the 
sphere  of  our  observations  to  Belgium,  in  order  to  avoid  repeti- 
tion, similar  examples  being  almost  universally  exhibited  through- 
out Europe.^ 

Our  information  is  obtained  from  the  work  of  Paul  Errera.^ 

The  masuirs  (the  amhorgers  of  Flanders)  were  the  mansuarii  or 
mansoarii  of  the  Merovingian  period,  originally  serfs,  afterwards 
tenants  and  copy-holders,  and  finally  freemen. 

Their  history  exhibits  the  following  stages  :  — 

(1)  The  feudal  epoch  in  which  the  masuirs  —  i.e.  all  the  mem- 
bers of  the  manorial  group  —  enjoyed  "  rights  of  usage  "  over 
all  waste  lands,  forests  and  pasturage  adjoining  their  holdings. 
These  rights  appear  to  have  been  conferred  by  the  lord  of  the 
manor,  but  they  really  dated  from  a  much  earlier  period. 

(2)  As  the  increasing  population  necessitated  the  regulation 
and  limitation  of  these  rights,  certain  conditions  of  property  and 
residence  were  stipulated  for  in  those  seeking  admission  to  the 
rights  of  the  masuirs,  and  these  privileged  persons  organized 
themselves  into  corporations  which  were  more  or  less  exclusive 
and  separate  from  the  general  community. 

(3)  By  degrees  —  by  means  of  cantonments,  purchases,  pre- 
scriptive claims,  etc.  —  these  corporations  absorbed  the  best 
part  of  the  land,  and  became  almost  independent  of  the  lord  of 
the  manor ;  as  a  rule,  the  latter  gave  up  half  of  the  common  ter- 

1  With  regard  to  corporative  property  in  Switzerland,  see  von  Mias- 
kowski,  "Die  schweizerische  Allmend",  pp.  37  and  following. 

2  *'Les  Masuirs,  recherches  historiques  et  juridiques  sur  quelques 
vestiges  des  formes  anciennes  de  la  propriete  en  Belgique." 


Chap.  XXIV.]  DEGENERATION  551 

ritory  to  them,  and  freed  the  surplus  from  all  rights  of  usage. 
In  the  corporations  of  masuirs,  however,  there  were  still  a  few 
remaining  vestiges  of  some  of  the  institutions  of  the  old  manorial 
group  from  which  they  had  gradually  developed.  The  lord  of 
the  manor,  for  instance,  himself  being  an  inhabitant  and  a  masuir, 
had  a  right  to  a  share  in  the  property  of  the  community,  and 
further,  in  his  seigniorial  capacity,  certain  privileges  accrued  to 
him,  such  as  "la  haute  fleur  des  bois  ",  i.e.  tithes  and  pannage 
(crops  of  acorns). 

(4)  The  Revolution  put  an  end  to  all  feudal  rights,  and  re- 
moved the  last  remaining  traces  of  the  origin  of  the  masuirs. 

Throughout  this  long  series  of  transformations,  it  is  evident 
that  degeneration  has  followed  in  the  track  of  progress.  Be- 
sides the  disappearance  of  the  manorial  group  and  its  attendant 
institutions,  the  rights  of  the  masuirs  may  be  said  to  have  become 
more  restricted  as  they  became  more  defined  and'  secure.  In 
the  early  days,  all  the  inhabitants  enjoyed  joint  rights  over  a 
vast  common  territory;  at  the  close  of  the  old  system  this  terri- 
tory had  become  much  reduced  in  extent,  and  had  become  the 
property  of  a  more  or  less  large  group  of  privileged  persons. 

6.  (Private  property — Switzerland.)  After  the  Revolution,  the 
communities  of  masuirs  and  other  similar  corporations  ceased  to 
have  any  recognized  legal  existence.  Those  which  still  sur- 
vived in  spite  of  the  irregularity  of  their  legal  position,  owed  their 
existence  to  their  insignificance.  The  others  dispersed  themselves, 
or  were  dispersed,  and  the  property  which  had  belonged  to  them 
was  either  incorporated  with  the  communal  estate,  or  divided 
up  among  the  members  of  the  old  community. 

In  each  of  these  cases  the  transformation  was  attended  by  de- 
generation, for  the  archaic  administrative  organization  disappeared. 

We  saw  in  the  Allmend  of  Switzerland,  this  same  divergent 
evolution  of  public  and  private  property,  part  of  the  common  land 
being  transformed  into  communal  property,  while  the  use  of  the 
surplus  ended  in  some  instances  in  the  land  becoming  ultimately 
the  private  property  of  individuals.  This  frequently  occurred 
where  land  was  cultivated  as  orchards.  In  early  times  both  fruit 
and  fruit  trees  belonged,  like  the  land  itself,  to  the  community, 
and  in  certain  parts  of  the  Cantons  of  Uri  and  Schwyz  this  is  still 
the  case.  By  degrees,  however,  individual  rights  over  fruit-trees 
planted  on  the  Allmend  came  to  be  recognized.  These  rights, 
whether  temporary  or  held  for  a  life-time,  eventually  became  per- 
petual, and  finally  this  right  to  the  private  acquisition  of  trees 


552  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

led  to  a  right  to  acquire  the  land  itself.  This  last  transfcrmation 
was  not  effected  without  a  struggle  and  occasionally  the  land  was 
reclaimed  by  the  community,  the  proprietor  of  the  trees  receiv- 
ing compensation.  Now-a-days  the  possession  of  trees  and  land 
usually  go  together.  Duality  of  this  kind,  however,  is  still  to 
be  met  with  in  certain  localities.  In  the  Sernfthal  (in  the  Canton 
of  Glaris)  a  still  stranger  custom  prevails  with  regard  to  the  maple 
forests.  There,  the  soil,  the  trees,  and  the  fallen  leaves  (the 
latter  being  used  as  litter  for  cattle)  all  belong  to  different  persons.^ 
With  regard  to  house  property  there  are  more  intermediary  con- 
ditions between  use  and  possession.  In  some  villages,  the  chalets, 
as  well  as  the  ground  upon  which  they  are  built,  belong  to  the 
whole  community;  in  other  villages,  both  are  part  of  the  collec- 
tive property.  Sometimes  private  possession  is  restricted  to  the 
house  or  chalet,  the  right  to  the  ground  upon  which  it  is  built 
lapsing  with  the  existence  of  the  house.  In  order  to  limit  the 
number  and  durability  of  these  buildings,  many  restrictions  are 
imposed,  such  as  the  prohibition  to  build  houses  of  stories,  or 
chalets  of  wood  cut  from  trees  not  belonging  to  the  builder  him- 
self or  to  the  corporation  to  which  he  belongs,  etc. 

7.  (Summary.)  This  long  series  of  modifications,  the  result 
of  which  was  the  transformation  of  primitive  communities  of 
goods  into  the  modern  forms  of  public  and  private  property,  was 
accompanied  throughout  by  degenerative  changes.  The  es- 
tablishment of  family  property  entailed  the  curtailment  of  tribal 
and  clan  rights.  Family  property  passed  into  property  held  by 
the  village ;  next  the  development  of  feudal  tenure  involved  the 
degeneration  of  the  old  agrarian  communities ;  finally,  the  primi- 
tive organization  of  property  with  the  administrative  and  polit- 
ical institution  dependent  on  it,  disintegrated  and  disappeared 
as  the  primitive  community  of  goods  lapsed  into  the  personal 
enjoyment  of  these  by  individuals,  and  as  the  primitive  method 
of  land  tenure  passed  into  the  rights  of  private  property. 

We  see  then  that  degeneration  has  always  accompanied  evolu- 
tion :  the  destruction  of  old  institutions  is  involved  in  the  for- 
mation of  new  institutions. 

(II)   Degeneration  in  the  Evolution  of  Organisms  and  Societies 

§  4.  Survivals  Exist  in  all  Kinds  of  Societies.  We  have  seen 
that  modification  of  organs  and  of  institutions  is  always  associated 
<  .  1  Miaskowski,  "Die  schweizerische  AUmend",  pp.  18  and  following. 


Chap.   XXIV.]  DEGENERATION  553 

with  partial  degeneration.  We  have  now  to  show  that,  similarly, 
when  organisms  and  societies  become  modified,  degeneration  is 
shown  in  some  of  their  organs  or  institutions.  This  shows  again 
the  universality  of  degenerative  evolution. 

It  may  be  said  as  certainly  of  societies  as  of  other  organisms 
that  certain  modifications  have  taken  place,  and  that  no  society 
actually  represents  a  primitive  social  organization.  All  have  been 
submitted  to  more  or  less  important  modifications  and  have  lost 
some  of  their  early  institutions  in  process  of  their  development. 
In  many  cases  this  can  be  historically  demonstrated. 

It  may  fairly  be  asserted  that  in  all  societies  there  are  instances 
of  siu'vival,  i.e.  survival  of  customs,  beliefs  and  institutions,  the 
original  character  of  which  has  so  completely  disappeared  that 
they  might  well  be  dispensed  with  altogether. 

We  shall  deal  only  w  ith  such  survivals  as  correspond  —  mutatis 
mutandis  —  to  the  rudimentary  organs  of  animals  and  plants. 

These  survivals  are  of  two  kinds,  the  institution  itself,  such  as 
the  various  corporations  of  the  city  of  London,  which  may  still 
persist,  though  in  a  modified  condition,  or  there  may  remain  only 
traces  of  the  institution  in  forms,  ceremonies,  symbols,  public 
games  and  fetes,  customs,  and  legislative  formulas. 

In  order  to  demonstrate  this  point,  it  will  not  be  necessary  to 
make  a  complete  enumeration,  furnishing  examples  from  all 
countries  of  the  world,  or  to  draw  up  a  complete  list  of  survivals 
in  any  given  country.     It  will  be  enough  to  establish  two  points : 

(1)  That  instances  of  survival  shall  be  shown  to  exist  in  all 
societies,  even  where  they  are  least  likely  to  be  found. 

(2)  That,  in  any  institution  —  that  of  the  family,  for  instance 
—  survivals  may  be  found  of  all  the  former  stages  through  which 
it  passed  into  its  present  condition. 

These  two  points  being  established,  our  conclusions  drawn  from 
them  may  be  given  a  very  wide  application. 

§  5.  Instances  of  Survival  in  Various  Groups.  "  It  is  a  well- 
known  fact,"  says  Kovalewsky,  ''that  as  the  past  gives  place  to 
the  present  it  leaves  traces  which  vary  in  number  and  impor- 
tance." 1 

This  is  obviously  the  case  with  regard  to  most  customs,  but  it 
is  unnecessary  to  point  out  all  the  instances  of  survival  which 
abound  among  the  peoples  of  the  countries  round  about  us.  They 
are  naturally  most  common  in  barbarous  societies  where  the  servile 

»  Kovalewsky,  "Tableau  des  origines  de  la  propriety  et  de  la  famille", 

p.  7. 


554  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

imitation  of  the  ancestor  plays  a  much  greater  part  than  with  us. 
This  is  strongly  urged  by  Bagehot  in  the  following  passage : 

''  Man,"  he  says,  ''  may  be  defined  as  a  creature  of  habits.  As 
he  has  done  a  thing  once,  so  he  will  probably  do  it  again,  and  the 
oftener  he  has  done  a  thing  the  more  likely  he  will  be  to  repeat 
it  in  the  same  way,  and,  what  is  more,  to  insist  upon  others  doing 
the  same. 

"  By  means  of  counsel  and  example  he  transmits  to  his  offspring 
the  customs  he  himself  originated.  This  is  true  of  the  human 
beings  today  and  will  doubtless  hold  good  for  all  time.  It  is 
characteristic  of  primitive  societies  that  sooner  or  later  most 
of  these  customs  come  to  be  regarded  as  having  a  supernatural 
sanction,  and  the  whole  community  is  impressed  with  the  belief 
that  if  the  old  tribal  customs  are  violated,  incalculable  misfortune 
will  follow."  1 

Social  modifications  are  therefore  effected  very  slowly  and  with 
great  difficulty  —  stagnation  is  the  rule,  and  progress  but  a  rare 
exception,  innovators  being  forced  to  retain  the  greater  part 
of  the  old  institutions,  introducing  only  an  inevitable  minimum  of 
change.  A  course  of  history,  or  a  careful  study  of  the  conditions 
of  social  institutions  at  an  earlier  stage  of  development  than  our 
own,  will  furnish  numerous  instances  of  survivals.  It  now  re- 
mains to  be  seen  if  there  are  no  rudimentary  social  groups  wherein 
all  the  primitive  institutions  have  been  retained,  and  which, 
having  undergone  no  modifications,  exhibit  no  traces  of  degenera- 
tion. We  shall  further  see  if  no  form  of  society  exists  unin- 
fluenced by  the  spirit  of  tradition,  and  where  institutions  which 
have  come  to  be  regarded  as  no  longer  useful,  disappear  suddenly 
and  entirely  either  by  voluntary  dissolution  or  by  legislative 
measures.  Only  in  these  two  extreme  cases  can  the  existence  of 
survivals  be  questioned.     We  have  then  to  establish  two  points. 

(a)  That  all  societies,  even  those  to  be  regarded  as  primitive, 
have  undergone  certain  modifications. 

(6)  That  all  societies,  even  the  least  conservative,  exhibit  in- 
stances of  reduced  institutions,  and  of  vestiges  of  institutions  which 
have  disappeared. 

We  will  take  the  second  point  first,  as  it  can  be  more  briefly 
dealt  with. 

1.  We  know  that  imitation  of  the  past  and  respect  for  tradi- 
tion and  custom  are  reduced  to  a  minimum  in  modern  societies, 

1  Bagehot,  "Lois  scientifiques  du  developpement  des  nations",  p.  154, 
Bibl.  scient.  intern.,  Paris,  F.  Alcan,  1885. 


Chap.    XXIV.]  DEGENERATION  555 

especially  in  the  countries  of  the  new  world.  Even  in  these  re- 
cently formed  States,  however,  instance  of  survival  may  be  found. 

In  the  first  place,  there  are  legal  and  religious  survivals  of 
European  origin.  Jews  settling  in  the  United  States  kept  up  the 
practice  of  circumcision  while  Christians  introduced  the  Eu- 
charist. Spencer  ^  has  shown  that  forms  of  greeting  are  vestiges 
of  a  primitive  ceremonial  demonstrating  submission  to  the  omnip- 
otence of  others.  Then  take  the  calendar  system  which  is  uni- 
versal ;  we  know  that  the  names  of  months  and  days  of  the  week 
are  survivals  from  polytheistic  times,  and  it  seems  certain  that 
both  circumcision  and  the  celebration  of  the  mass  are  true  sur- 
vivals which  originated  in  religious  sacrifices.  Independently  of 
these  imitative  survivals  vestiges  remain  in  the  United  States 
of  reduced  institutions  which  were  fully  functional  in  the  last 
century. 

2.  We  have  now  to  show  that  the  simplest  societies  have  under- 
gone modifications,  and  exhibit  instances  of  survival.  We  will 
take  as  examples  those  rudimentary  types  most  nearly  approach- 
ing to  the  primitive  type,^  i.e.  the  Veddahs  of  Ceylon,  the  Fuegians 
of  Cape  Horn,  and  the  Australian  tribes. 

(a)  The  Veddahs,  who  have  lived  in  the  jungles  of  Ceylon  for 
centuries,  either  as  separate  families,  or  in  groups  of  two  or  three 
families,  appear  to  have  formerly  possessed  a  much  more  com- 
plicated social  organization.  According  to  Max  Miiller,  they 
were  not  formerly  so  low  in  the  scale  of  humanity ;  he  says  that 
their  language,  if  not  their  blood,  betrays  their  "  distant  connec- 
tion with  Plato,  Newton,  and  Goethe." 

In  their  language,  folk-lore,  and  clothing,  these  retain  charac- 
teristic vestiges  of  a  former  condition.  Take  for  instance  the 
carefully  observed  practice  of  piercing  the  ears  of  children  at  the 
age  of  three  or  four  years,  although  eventually  only  a  small  number 
of  them  could  wear  ornaments  in  them,  others  having  to  be  content 
with  small  pieces  of  twig,  coiled  leaves,  or  bits  of  straw. 

''  This  custom,"  says  Deschamps,  "  is  extremely  old,  and  we  may 
suppose  —  as  there  is  no  other  signification  in  it  than  the  prospect 
of  ultimately  wearing  jewels  —  that  it  dates  back  from  a  time  when 
the  people  were  not  in  so  low  and  destitute  a  condition  as  they  are 
now.     Having  in  more  civilized  times  worn  jewels  in  their  ears, 

'  "Essays  on  Progress." 

2  "Aggregates  formed  by  a  simple  repetition  of  hordes  or  clans  with- 
out any  such  interrelations  between  them  as  to  form  intermediate  groups 
between  the  whole  collection  and  the  individual  clans."  Durkheim, 
"Les  Ragles  de  la  methode  sociologique",  Paris,  F.  Alcan,  1895. 


556  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

the  custom  of  piercing  the  ears  in  youth  persists,  though  the  jewels 
may  be  lacking."  ^ 

(b)  Bridges  says  that  according  to  a  tradition  which  is  probably 
true,  the  Fuegians,  until  quite  recently,  submitted  their  young 
men  to  a  sort  of  initiatory  trial  when  they  attained  to  adolescence. 
They  were  taken  into  a  hut  (the  kino)  set  apart  for  the  purpose, 
and  there  underwent  certain  tests,  including  a  rigorous  fast. 
Bridges  adds  that  the  kina  was  also  the  theatre  of  mysterious  and 
bizarre  scenes  of  very  ancient  origin,  the  roles  of  which,  now 
relegated  to  men  only,  were  entirely  performed  by  women.  Con- 
trary to  Giraud-Teulon  who  cites  these  facts  as  evidence  of  the 
former  existence  of  a  matriarchy,  the  fetes  of  the  kina  seem  to 
have  quite  disappeared  from  among  the  natives  of  Orange  Bay. 

Dr.  Hyades,  however,  mentions  a  survival  of  the  old  custom. 
"  The  custom  is  still  observed  of  submitting  young  girls  to  a  fast 
at  the  time  of  puberty,  but  this  fast  is  less  severe  than  that 
already  mentioned  as  undergone  by  the  boys;  the  same  good 
advice  is  then  given  them  by  their  parents,  as  was  formerly 
bestowed  upon  the  boys  in  the  kina.''  ^ 

(c)  Recent  researches  into  the  family  system  among  the  Aus- 
tralian tribes  has  brought  a  number  of  survivals  to  light.  This 
is  especially  the  case  with  regard  to  the  careful  researches  of 
Fison  and  Howitt  ^  who  have  shown  that,  independently  of  their 
tribal  divisions  —  which  are  really  territorial  groups  —  the 
Australians  are  divided  up  into  clans  or  sexual  groups  comprising 
all  the  individuals  with  the  same  Kohong} 

The  members  of  these  groups  are  regarded  as  members  of  the 
same  family,  and  may  never,  under  any  circumstance,  inter- 
marry, under  pain  of  being  driven  out  of  the  clan  and  hunted  like 
wild  beasts.  Sometimes  individuals  of  antagonistic  tribes  living 
at  several  hundred  miles'  distance  from  one  another  and  speaking 
different  languages  have  the  same  Kobong.  The  law  of  classes 
remains  active ;  a  captor  may  not  violate  a  prisoner  belonging  to 
his  groups,  but  a  stranger  may  enter  into  relations  with  the  women 
of  another  tribe,  so  long  as  the  tribe  belongs  to  a  class  related  to 

1  Emile  Deschamps,  "L'Anthropologie",  1891,  t.  ii.,  pp.  297  and 
following. 

2  "Mission  scientifique  du  cap  Horn",  1882-1883,  t.  vii.,  "Anthro- 
pologie,  Ethnographie",  by  P.  Hyades  and  J.  Deniker,  Paris,  Gauthier- 
Villars,  1891,  p.  377. 

3  Fison  and  Howitt,  "Kurnai  and  Kamilaroi"  (*'  Journal  of  the  Anthro- 
pological Institute",  1884). 

*  ' '  The  Kobong  of  a  man  is  the  animal  or  plant,  the  name  of  which  he 
bears  and  reveres  as  a  protecting  spirit"  (Starcke). 


Chav.   XXI V.J  DEGENERATION  557 

his  own.  This  system  of  relationship  can  only  be  explained  as 
being  a  survival  from  a  former  period  in  which  all  persons  with 
the  same  Kobong  belonged  to  the  same  group.  This  is  a  dis- 
puted point/  however,  for  besides  this  very  likely  hypothesis, 
undoubted  survivals  remain  of  intermarriage  by  groups  or  sexual 
groups.  In  the  writings  of  Fison  and  Howitt,  we  find  the  two 
following  instances  of  this  in  two  tribes  which,  according  to  them, 
severally  represent  the  highest  and  lowest  in  the  scale  of  civili- 
zation, among  those  with  which  they  came  in  contact.^ 

{(l)  The  tribe  called  Kimandaburi  was  divided  into  two  exog- 
amous  classes :  Mattara  and  Yungo.  Theoretically  all  the 
Yungos  whether  male  or  female  were  regarded  as  the  males  of  the 
Mattara^,  and  vice  versa.  In  point  of  fact,  however,  only  one 
vestige  of  the  primitive  communal  marriage  remained  —  the  jus 
primoB  noctis,  which  was  the  prerogative  of  all  the  contemporaries 
of  the  husband  belonging  to  the  same  group. 

{e)  The  tribe  called  Narrinyeri,  which  represented  a  more  ad- 
vanced stage  of  civilization,  was  equally  divided  into  two  sexual 
groups,  but  in  reality,  marriage  was  strictly  individual.  One 
survival  remained,  however,  of  the  former  system.  When  a  man 
captured  an  alien  bride,  all  the  men  of  his  own  generation  and 
belonging  to  the  same  group  possessed  the  right  of  jus  primoB 
noctis. 

3.  We  have  seen  that  instances  of  survival  are  rare  in  some 
countries  because  modifications  are  only  effected  slowly,  and  in 
others  because  changes  are  effected  very  quickly  and  useless  in- 
stitutions are  eliminated  root  and  branch.  It  is  in  countries  like 
England,  where  modifications  are  brought  about  with  a  due  respect 
for  old  customs  and  traditions,  that  ceremonies,  institutions,  and 
customs  exhibit  the  greatest  number  of  survivals. 

§  6.  Summary  and  Conclusions.^  The  examples  we  have  been 
able  to  give  make  it  plain  that  degenerative  evolution  exists 
everywhere.  It  must  be  noticed,  however,  that  biological  in- 
vestigations show  that  in  the  evolution  of  organs  certain  ^  parts 
may  disappear  completely,  but  also  that  in  the  evolution  of  organ- 
isms certain  organs  may  also  disappear.  This  last  phenomenon 
is  most  common  in  embryological  development,  when  it  is  known 
as  ontological   abbreviation.     Sometimes  it  is  the   adult   stage 

1  5<arrAe,  " La  Famille  primitive"  (Bibl.  scient.  intern.,  Paris,  F. 
Mean,  1891,  p.  22).. 

2  Fison  and  Howitt,  "Journal  of  the  Anthropological  Institute",  1882. 
p.  35.     . 

'  Various  intermediate  sections  have  been  omitted. 


558  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

that  is  suppressed,  this  being  possible  by  what  is  called  psedogene- 
sis,  a  precocious  appearance  and  ripening  of  the  sexual  organs. 

Sometimes  a  degenerative  transformation  becomes  still  more 
complete  and  wonderful ;  not  only  may  a  larval  stage  or  an  adult 
stage  be  completely  suppressed,  but  a  multicellular  organism  may 
even  lose  its  power  of  dying.  It  is  known  that  the  simplest  forms 
of  life  are  practically  immortal :  when  a  microbe  like  micrococcus 
divides,  nothing  dies,  and  throughout  the  whole  series  of  succes- 
sive divisions  the  primitive  life  is  preserved.  On  the  other  hand, 
in  the  case  of  higher  animals  such  as  man  there  are  both  mortal 
somatic  cells  and  reproductive  cells  which  by  means  of  conjuga- 
tion become  practically  immortal.  The  mortality  of  the  somatic 
cells  is  evidently  an  acquisition,  an  advantage  fixed  by  natural 
selection;  but  there  exist  multicellular  organisms  evidently 
derived  from  creatures  which  had  acquired  the  division  into  mortal 
somatic  and  immortal  reproductive  cells  and  which  have  lost  it 
since.  All  the  cells  of  their  body  are  able  to  avoid  death  by 
conjugation. 

Whatever  transformation  may  be  studied,  it  will  be  found 
that  change  is  always  accompanied  by  an  elimination  of  some  parts 
and  that  in  the  interests  of  the  organism  as  a  whole  these  useless 
parts  gradually  degenerate.  When  a  whole  organization  begins 
to  undergo  retrogressive  evolution  and  to  decay,  it  is  frequently 
in  the  interests  of  some  still  larger  organization.  Individuals 
or  species  out  of  harmony  with  their  surroundings  disappear  to 
make  room  for  others.  August  Comte  has  shown  how  death  is 
a  progressive  agency  in  the  social  organization,  removing  the 
worn-out  tissues  and  leaving  room  for  new  and  more  plastic  in- 
telligence. All  progress  implies  necessary  eliminations.  In  the 
domain  of  society,  those  who  are  victims  and  who  from  birth, 
education,  or  interests,  attach  themselves  to  the  decaying  institu- 
tions, naturally  see  only  the  degenerative  side  of  the  change ;  but 
those  who  regard  the  process  as  a  whole  and  do  not  concentrate 
their  attention  upon  the  injured  interests  and  individual  sufferings 
will  see  the  other  side  of  the  movement. 

When  a  social  organism  is  degenerating  there  is  considerable 
opposition  to  its  complete  disappearance,  and  so  as  Houzeau  has 
said,i  it  is  to  be  expected  that  living  and  superior  civilizations 
drag  behind  them  a  trail  of  debris  from  dead  civilizations. 

1  [See  §  19  of  this  chapter.] 


Chap.  XXIV.]  DEGENERATION  559 

II.  The  Path  of  Degenerative  Evolution 

(III)    The  Supposed  Law   That  Degeneration  Retraces  the  Steps 

of  Progress 

§  7.  Retrogrression.  It  is  a  common  opinion,  supported  partly 
by  the  etymology  of  the  word,  that  retrogression  is  a  tracing 
backwards  of  progression.  "  In  the  degeneration  of  organiza- 
tions fallen  out  of  use,"  M.  A.  Lameere  has  said,  "  it  is  to  be 
observed  that  the  structures  formed  most  recently  and  most  special- 
ized are  the  first  to  disappear,  and  that  the  most  fundamental 
characters  are  those  which  persist  longest :  that  in  fact  degenera- 
tive evolution  retraces  the  steps  made  by  progressive  evolution. 
Peculiarities  recently  acquired,  if  they  become  disused,  rapidly 
disappear,  while  dispositions  of  a  more  ancient  kind  have  a  per- 
sistence almost  exactly  proportioned  to  their  age."  ^ 

This  supposed  biological  law  of  retracement  has  penetrated  to 
psychology  and  sociology.  In  1868  Hughlings  Jackson,  in  the 
study  of  certain  maladies  of  the  nervous  system,  had  arrived  at 
the  conclusion  that,  "  In  the  degeneration  of  this  system  the 
higher  functions,  those  more  complex,  specialized  and  voluntary, 
disappear  more  quickly  than  the  lower,  simpler,  less  specialized, 
and  more  automatic  functions."  ^ 

Starting  from  this  point,  and  expressing  it  in  terms  of 
physiology,  Ribot  formulates  as  follows  the  law  of  degenera- 
tion of  will  and  memory :  "  The  dissolution  of  the  will  occurs 
in  a  retrograde  fashion,  from  the  more  voluntary  and  complex 
to  the  less  voluntary  and  simpler  —  that  is  to  say,  towards  autom- 
atism." ^ 

So  also  in  progressive  loss  of  memory,  the  degeneration  proceeds 
from  the  less  stable  to  the  more  stable.  "  It  begins  with  recent 
acquisitions  not  firmly  rooted  in  the  brain,  rarely  repeated,  and 
so  not  firmly  associated  with  others,  in  fact  with  the  least  organized 
parts  of  memory.  It  ends  with  sensory  memory,  which  is  instinc- 
tive, and  is  deeply  rooted  in  the  organism,  or  is  indeed  a  part  of 
the  organism  itself."  "^ 

These  retrograde  transformations  of  the  nervous  centres  have 
their  echoes  in  the  modes  in  which  ideas  and  feelings  are  expressed. 

1  A.  Lameere,  "Esquisse  de  la  Zoologie",  Bruxelles,  Rosez,  p.  184. 

2  Ribot,  "Maladies  de  la  M6raoire",  p.  29;  Dallemagne,  "Deg6n6r6s 
et  Desequilibres",  p.  430. 

3  "Maladies  do  la  Volenti",  p.  150,  Paris,  F.  Aloan. 
<  "Maladies  de  la  Meraoire",  p.  94. 


560  PROCESS    OF    LEGAL   EVOLUTION  [Part   III. 

Paul  Heger,  in  particular,  has  shown  this  in  his  investigations 
into  the  degeneration  of  writing  and  speech.^ 

In  a  lecture  on  the  evolution  of  language,  delivered  at  the 
University  of  Brussels,  he  said  as  follows :  ''  For  several  years 
I  have  studied  the  degenerative  evolution  of  writing,  and  I  have 
shown  how  the  writing  of  the  insane  resembles  that  of  children. 
All  that  I  have  said  with  regard  to  writing  applies  to  speech,  and 
just  as  drawing  lasts  longer  than  writing,  so  rhythm  and  music 
survive  after  the  power  of  expressing  ideas  by  words  has  been  lost. 
The  gradual  degeneration  of  speech  may  be  traced  in  the  case  of 
old  men  who  gradually  pass  down  the  incline  into  senility.  Study 
of  the  speech  of  such  persons  shows  that  the  degeneration  of  their 
faculty  retraces  the  steps  by  which  it  had  been  progressively 
acquired." 

The  labors  of  Heger  were  in  a  field  where  the  social  element  was 
important.  It  is  a  small  step  from  them  to  social  affairs  themselves. 
A  number  of  authors,  including  Ferrero,  Colajanni,  and  Degreef, 
base  their  ideas  upon  this  law  of  retrogression,  which  they  regard 
as  established  and  applying  to  sociological  phenomena.^ 

§  8.  The  Path  of  Degeneration  in  Sociology.  We  have  now 
to  see  if  degenerative  evolution  in  social  matters  retraces  the  steps 
of  progressive  evolution. 

In  the  first  place  the  question  cannot  be  even  entertained  with 
regard  to  some  cases,  and  this  for  a  general  reason  which  will  be 
dealt  with  later  on. 

When  a  complex  institution  —  such  as  a  commercial  society 
or  an  administrative  organization  —  becomes  useless  and  ceases 
to  be  functional,  it  usually  disappears  either  by  voluntary  dissolu- 
tion or  else  it  is  legally  suppressed.  In  either  case  there  is  no  slow 
retrogressive  degeneration  retracing  inversely  the  steps  of  progress, 
for  all  the  parts  cease  to  exist  simultaneously.  If  certain  parts  of 
the  suppressed  institution  are  allowed  to  persist,  these  are  by  no 
means  necessarily  the  oldest  parts,  but  quite  the  contrary. 

When,  for  instance,  the  provincial  states  of  Dauphiny  and 
Normandy  were  suppressed  by  the  French  monarchy,  only  the 
titles  with  their  corresponding  emoluments  were  allowed  to  remain, 
and  they  were  obviously  of  more  recent  origin  than  the  States 
themselves. 

1  "Sur  rEvolution  regressive  de  I'Ecriture  chez  certains  Alienes" 
("Bull,  de  la  Societe  d'Anthropologie  de  Bruxelles",  v,  1885-1886) ;  "Sur 
rEvolution  du  Langage"  ("Revue  Universitaire",  Bruxelles,  1892-1893, 
p.  143). 

2  Degreef,  "Le  Transformisme  Social",  F.  Alcan,  Paris,  1895,  p.  365. 


Chap.   XXIV.]  DEGENERATION  561 

It  must  be  borne  in  mind  that  all  the  parts  of  an  institution 
rarely  become  simultaneously  useless  and  non-functional.  Those 
which  retain  their  utility  longest  are  by  no  means  always  the  most 
ancient  in  origin. 

English  sheriffs  have  gradually  become  of  less  and  less  functional 
importance,  and  now  fulfil  no  other  role  than  that  of  presiding  over 
elections  and  accompanying  the  judges  when  on  circuit.  Both 
of  these  functions  have  been  acquired  recently  compared  with  all 
those  which  the  sheriff  discharged  in  the  days  when  the  care  and 
protection  of  the  whole  county  practically  devolved  upon  him. 

The  question  then  of  the  pathway  of  degeneration  only  arises 
in  those  cases  where  the  same  cause  of  dissolution  simultaneously 
affects  all  parts  of  the  institution,  and  where,  without  sudden 
interruption,  degeneration  is  effected  slowly  but  surely  through 
many  successive  stages.  This,  of  course,  happens  in  the  de- 
generative evolution  of  individual  societies  or  institutions,  and 
not  in  the  disappearance  of  complete  classes  of  institutions. 

These  reservations  being  understood,  we  will  mention  a  few 
more  or  less  obvious  cases  in  which  degeneration  does  retrace  the 
footsteps  of  progressive  evolution. 

(1)  (Tithings,  hundreds  and  counties  in  England.)  In  the  chap- 
ter dealing  with  the  pathway  of  degeneration  in  ''  Transformisme 
social",  G.  Degreef  mentions  the  following  interesting  facts:  — 

''  ]\Ir.  Herbert  Spencer,  after  describing  the  formation  of  tith- 
ings, hundreds,  and  counties  in  England  under  the  Anglo-Saxon 
regime,  observes  that  the  tithings  along  with  their  courts  of  justice 
were  the  first  to  disappear,  then  the  hundreds  followed,  though 
some  vestiges  of  their  old  courts  of  justice  remained,  and  only 
the  counties  and  the  county  courts  were  left  intact.  Now  we 
have  historical  proofs  that  English  counties  along  with  their  courts 
of  justice  were  created  before  the  hundreds,  and  the  hundreds 
before  the  tithings."  ^ 

(2)  (Order  of  elimination  of  various  racial  elements  in  a  coun- 
try.) In  his  interesting  work  ''  Civilisation  et  depopulation  ",^ 
Dumont  mentions  certain  facts  which  go  to  show  that  the  in- 
habitants of  poor  districts,  who  are  nevertheless  of  pure  racial 
descent,  have  a  birth-rate  higher  than  that  of  the  members  of  the 
population  who  are  not  aboriginal,  and  who  for  the  most  part 
dwell  in  the  towns  and  fertile  plains.  From  this  he  concludes 
that  the  various  racial  elements  of  a  nation  are  eliminated  in  in- 

1  Degreef,  "Le  transformisme  social",  p.  450. 
«  P.  156. 


562  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

verse  order  to  that  in  which  they  were  introduced.     In  France, 
for  instance,  the  Frank  has  been  completely  absorbed  in  the  Gaul. 

(3)  (The  degenerative  evolution  of  political  organizations.) 
The  progressive  and  degenerative  evolution  of  political  organiza- 
tions has  been  described  by  Herbert  Spencer  as  follows  ^ :  — 

"  Political  integration,  as  it  advances,  obliterates  the  original 
divisions  among  the  united  parts.  In  the  first  there  is  the  slow 
disappearance  of  those  non-topographical  divisions  arising  from 
relationship,  as  seen  in  separate  gentes  and  tribes  —  gradual 
intermingling  destroys  them.  In  the  second  place,  the  smaller 
local  societies  united  into  a  larger  one,  which  at  first  retains  their 
separate  organizations,  lose  them  by  long  co-operation  ;  a  common 
organization  begins  to  ramify  through  them.  And,  in  the  third 
place,  there  simultaneously  results  a  fading  of  their  topographical 
bounds,  and  a  replacing  of  them  by  the  new  administrative  bounds 
of  the  common  organization. 

"  Hence,  naturally,  results  the  converse  truth  that  in  the  course 
of  social  dissolution  the  great  groups  separate  first,  and  after- 
wards, if  dissolution  continues,  these  separate  into  their  component 
smaller  groups.  Instance  the  ancient  empires  successively  formed 
in  the  East,  the  united  kingdoms  of  which  severally  resumed  their 
autonomies  when  the  coercion  of  keeping  them  together  ceased. 
Instance  again  the  Carlovingian  Empire  which,  first  parting  into 
its  large  divisions,  became,  in  course  of  time,  further  disintegrated 
by  subdivisions  of  these.  And  when,  as  in  this  last  case,  the  pro- 
cess of  dissolution  goes  very  far,  there  is  a  return  to  something 
like  the  primitive  condition,  under  which  small  predatory  societies 
are  engaged  in  continuous  warfare  with  like  small  societies  arou'^d 
them." 

We  may  conclude  then  that  political  integration  is  attended 
by  degeneration ;  primitive  institutions  disappear  and  make  way 
for  fresh  institutions,  and  their  disappearance  is  permanent.  In 
the  course  of  the  dissolution  of  the  Carlovingian  Empire  there  was 
no  reappearance  either  of  the  gentes  or  of  the  primitive  .tribal 
system;  but  when  this  vast  organization  broke  down,  it  was 
natural  that  the  more  recently  formed  social  bonds,  having  had 
the  least  opportunity  of  becoming  consolidated,  should  be  the 
first  to  be  sundered. 

(4)  (Degenerative  adaptation  in  colonial  legislation.)  In  his 
treatise  C'  Annalisi  della  proprieta  capitalista  "),  Loria  furnishes 

1  Herbert  Spencer,  "Political  Institutions",  Part  iv  of  "Principles  of 
Sociology",  p.  286. 


Chap.   XXIV.]  DEGENERATION  563 

another  striking  example  of  the  law  of  degeneration :  "  When 
English  colonies  were  first  formed  in  America,  the  colonists  hes- 
itated to  establish  any  legislation  other  than  that  of  the  mother- 
country.  They  were  habituated  to  it;  it  was  written  in  their 
own  language,  and  therefore  seemed  best  to  correspond  with  their 
national  characteristics.  But,  from  the  outset,  the  greatest  dif- 
ficulties were  met  with  in  the  application  of  this  legislation  to  the 
colonies. 

"  In  the  first  place  the  statute  law  of  England,  the  most  recent 
addition  to  the  legislation,  was  found  to  be  quite  unsuited  to  the 
economic  condition  of  a  colony,  and  so  common  law  alone  came  to 
be  established,  which,  being  the  more  ancient,  was  better  suited 
to  the  social  organization  of  a  newly-formed  society.  But  even 
this  form  of  legislation  did  not  remain  permanent  under  social 
conditions  profoundly  different  from  those  in  which  it  had  been 
originally  established,  and  the  construction  of  a  special  legislation 
was  found  to  be  necessary.  In  this  way  the  common  law  of  Eng- 
land came  to  be  regarded  as  unsuited  to  her  colonies,  excepting 
in  such  cases  as  were  unprovided  for  in  the  new  colonial  law."  ^ 

§  9.  A  Criticism  of  the  Supposed  Inverse  Path  of  Degeneration. 
These  few  examples  suffice  to  show  that  in  certain  cases  the 
more  recently  formed  institutions  are  the  first  to  decline  and  dis- 
appear, while  the  older  persist  to  the  end. 

It  must  be  remembered,  however,  that  the  contrary  is  at 
least  as  frequently  the  case.  All  changes  of  legislation,  either 
juridical  or  religious,  follow,  but  never  precede,  the  economic 
transformations  to  which  they  relate,  whether  these  be  social  or 
ethical,  unless  the  transformations  are  ephemeral.  **  Imita- 
tio  ."  says  Tarde,  "proceeds  from  the  more  obvious  to  the  less 
obvious ;  that  is  to  say,  ends  and  feelings  are  imitated  sooner 
than  their  means  and  expressions." 

Title-deeds  and  armorial  bearings  survive  nobility;  houses 
continued  to  be  held  as  personal  or  movable  property  long  after 
the  disappearance  of  nomadic  tribes,  which,  living  as  they  did 
in  tents,  originated  the  conception.^ 

Among  peoples  where  the  system  of  marriage  by  groups  has 
existed,  fam.ily  nomenclatures  continued  to  persist  long  after  the 
disappearance  of  the  family  system  to  which  they  owed  their  origin. 

*  Loria,  "Annalisi  della  proprieta  capitalista",  ii,  48. 

»  Viollet,  "Histoire  du  droit  civil  fr.",  p.  617.  "Although  houses 
were  for  centuries  treated  as  movable  property,  they  continued  to  be 
legally  treated  as  such  for  a  still  longer  period  of  time ;  it  is  characteristic 
of  judicial  ideas  that  they  lag  far  behind  economic  progress." 


564  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

"  The  family,"  says  Morgan,  ''  is  an  active  element,  never  station- 
ary ;  it  keeps  pace  with  the  development  of  society  in  the  march 
of  progress.  On  the  other  hand,  the  reckoning  of  kinship  changes 
very  slowly;  only  after  long  lapses  of  time  does  it  register  the 
progress  actually  made  by  the  family  in  the  course  of  ages,  and 
does  not  undergo  any  radical  transformation  until  long  after  the 
family  itself  has  been  completely  changed."  ''  And,"  adds  Karl 
Marx,  whose  critical  annotations  on  Morgan's  book  were  carefully 
preserved  by  Engels,  "  this  also  applies  to  systems  of  politics, 
law,  religion,  or  philosophy." 

These  systems,  formed  after  the  completion  of  the  social  organi- 
zation which  they  express,  survive  after  the  organization  itself 
has  disappeared.  Their  elimination  is  not  of  such  importance  to 
society  as  is  that  of  the  economic  or  family  institutions  themselves, 
as  these,  when  they  become  useless  and  disadvantageous,  are  a 
drag  on  future  development. 

It  cannot  be  established,  however,  as  a  general  principle,  that 
the  pathway  of  degeneration,  as  regards  societies  or  institutions,  is 
inverse  to  that  pursued  by  their  progressive  evolution.  In  the 
first  place,  the  mere  explanation  of  this  supposed  law  shows  that 
it  is  quite  untenable. 

There  is  nothing  invariable  about  the  pathway  of  degeneration. 
It  can  no  more  be  said  to  retrace  the  pathway  of  progress  in  an 
inverse  direction  than  it  could  be  said  that  in  a  country  abandoned 
by  its  inhabitants  the  more  recently  formed  paths  of  communica- 
tion would  be  the  first  to  become  effaced.  It  is  quite  true  that 
the  broader  roads,  which  would  naturally  last  longer,  are  frequently 
the  oldest  paths  of  communication ;  whereas  the  footpaths,  which 
are  the  first  to  disappear,  are  usually  of  more  recent  origin.  Very 
frequently,  however,  the  new  roads  follow  a  rather  different  direc- 
tion, and,  althousjh  more  recently  constructed,  are  not  the  first 
to  disappear. 

§  10.  The  Irreversibility  of  Degenerative  Evolution.  Most  au- 
thorities on  the  subject  are  agreed  that  evolution  is  not  reversible,^ 
and  that  institutions  or  organs  which  have  disappeared  or  been 
reduced  to  rudiments  do  not  reappear  and  develop  afresh.  It 
would  be  a  useless  extension  of  this  volume  to  cite  many  facts 
in  favor  of  a  view  which  is  almost  without  supporters,  but  it  will 
be  useful  to  examine  the  exceptions,  real  or  apparent,  and  to  dis- 
cuss:    1.  If  an  institution  or  organ  which  has  disappeared  may 

1  L.  Dollo,  "Les  lois  de  I'ElvGlution"  C'Soc.  Belg.  Geol.  Paleont.  Hydr.'\ 
t.  vii,  1893,  "proces-verbaux",  pp.  164-166). 


Chap.  XXIV.]  DEGENERATION  565 

reappear;  2.  If  an  institution  or  organ  which  has  been  reduced 
may  resume  its  primitive  function ;  3.  If  an  institution  or  organ 
which  has  been  reduced  may  redevelop  and  assume  a  function 
other  than  its  original  function. 

§  11.  Disappeared  Institutions.  The  Apparent  Revival  of  By- 
gone Institutions.  It  seems,  at  first  sight,  as  if  there  were  many 
instances  of  the  subsequent  revival  of  bygone  institutions. 

Those  of  ancient  Rome  and  Greece,  for  instance,  appear  from 
time  to  time  to  have  been  reconstructed.  In  feudal  Rome  of  the 
fourteenth  century,  Cola  di  Rienzi,  by  turns  tribune  and  senator 
of  the  people,  re-established  the  old  republican  constitution. 
During  the  Renaissance  period  the  ancient  schools  of  science 
were  resuscitated,  and  during  the  French  Revolution  similar 
attempts  at  revival  were  made,  especially  in  the  department  of 
politics.  When  Herault  de  Sechelle,  being  ordered  to  draw  up  a 
scheme  of  legislation,  revived  the  laws  of  Minos,  in  the  constitution 
of  the  year  VIII,  the  tribunal,  senate  and  consuls  reappeared. 
During  the  First  Empire,  Napoleon,  in  imitation  of  Augustus, 
affected  a  respect  for  republican  institutions,  and  had  the  coinage 
stamped  with  his  own  effigy  and  that  of  the  republic.  In  Ger- 
many, the  Holy  Empire,  which  nominally  ceased  to  exist  in  1806, 
reappeared  in  1871.  In  Greece,  the  Olympic  games,  suppressed 
in  1525,  were  re-established  in  1896. 

It  is  hardly  necessary  to  insist  upon  the  essentially  superficial 
nature  of  these  revivals.  It  is  always  possible  to  bestow  upon 
new  social  systems  the  ceremonial  code  of  an  institution  long  since 
abandoned,  but  it  is  quite  impossible  that  the  institution  itself 
should  be  resuscitated  in  the  midst  of  surroundings  which  have 
been  completely  transformed.  The  consuls  of  the  year  VIII 
and  the  emperors  of  modern  times  do  not  resemble  the  consuls 
and  imperatores  of  ancient  Rome  more  than  the  Christian  soci- 
eties of  the  present  day  resemble  those  of  the  Middle  Ages.  With 
regard  to  outer  form  in  the  drawing  up  of  statutes,  in  all  which 
constitutes,  so  to  speak,  the  decorative  side  of  the  institution, 
the  organizers  imitated  minutely  the  keuren  of  the  old  ambachten; 
beneath  this  apparent  similitude,  however,  were  structures  of  an 
essentially  different  nature.  Just  as  the  new  railway  station  at 
Bruges,  in  spite  of  its  towers  and  its  pointed  arches,  is  far  more 
like  any  other  railway  station  than  a  Gothic  cathedral,  so  the 
Christian  societies  of  today,  in  spite  of  the  archaic  caprices  of  their 
founders,  resemble  more  closely  modern  associations  than  ancient 
associations.    We  see  then  that  it  cannot  be  said  in  any  of  these 


566  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

cases  that  the  actual  revival  of  a  decayed  institution  took  place. 
The  empty  form  reappeared,  but  the  foundations  and  the  essential 
parts  had  become  completely  transformed. 

§  12.  Summary  and  Conclusions.  From  all  the  facts  that  we 
have  brought  together,  the  general  conclusion  becomes  plain  that 
retrogression,  notwithstanding  the  etymology  of  the  word,  does 
not  imply  a  return  to  the  ancestral  condition- 

Rudimentary  organs  and  institutions  resemble  the  primitive 
states  of  these,  in  so  far  as  they  no  longer  possess  certain  parts 
which  the  primitive  stages  did  not  yet  possess.  None  the  less, 
profound  differences  exist  between  the  primitive  and  the  reduced 
forms.  In  the  primitive  condition  the  institution  or  organ  is 
capable  of  varying  in  the  direction  of  new  uses;  in  the  reduced 
form,  after  a  certain  degree  of  atrophy,  there  is  no  longer  the 
possibility  of  redevelopment  to  resume  old  or  to  acquire  new 
functions.  These  observations  apply  equally  to  biology  and  to 
sociology. 

III.  Causes  of  Degenerative  Evolution 

(IV)    Atrophy  of  Organs  and  Institutions 

§  13.  The  Factors  of  Atrophy.  The  causes  which  are  active 
in  producing  degeneration  are  various,  but  they  may  all  be  re- 
ferred to  the  limited  nature  of  the  means  of  subsistence,  that  is  to 
say,  of  nourishment  in  the  case  of  organisms,  and  of  capital  and 
labor  in  the  case  of  institutions.  This  limitation  produces  a 
struggle  between  the  individuals  (societies  or  organisms)  and 
between  their  component  parts. 

In  the  course  of  the  perpetual  struggle  for  existence  among  the 
different  parts  of  an  individual,  the  institutions  or  organs  which 
have  ceased  to  be  functional  tend  to  disappear,  their  nourishment 
being  absorbed  by  the  active  parts. 

§  14.  Atrophy  of  Institutions.  The  causes  of  atrophy  in  in- 
stitutions are  more  or  less  analogous  to  those  which  bring  about 
atrophy  of  organs.  First,  there  is  atrophy  from  want  of  use,  when 
function  either  becomes  useless  or  is  transferred  to  another  insti- 
tution. Atrophy  from  lack  of  resources  corresponds  precisely 
with  atrophy  from  lack  of  nutrition.  There  is  nothing,  however, 
in  the  atrophy  of  institutions  quite  analogous  to  that  which,  in 
organisms,  results  from  lack  of  space.  But  if  the  development 
of  an  institution  cannot  be  actually  impeded  by  the  coexistence 
of  another  institution,  certain  instances  of  atrophy  do  occur  which 


Chap.   XXIV.]  DEGENERATION  567 

cannot  be  said  to  arise  from  either  want  of  use  or  lack  of  resources. 
The  institution  degenerates  merely  from  hindrance  offered  to 
the  exercise  of  its  functions. 


(V)    The  Causes  of  the  Persistence  of  Organs  or  Institutions  without 

Function 

§  15.  Survival  of  Organs.  We  have  shown  how  and  why  organs 
may  become  rudimentary  and  tend  to  disappear.  In  many  cases 
the  disappearance  is  complete;  and  the  organ  may  not  even 
reappear  temporarily  in  the  course  of  the  individual  development. 
This  disappearance  is,  how^ever,  by  no  means  universal.  Even 
apart  from  the  phenomena  of  recapitulation,  rudimentary  organs 
may  persist  in  the  adult,  and  sometimes,  even  although  organs 
have  ceased  to  be  functional,  they  persist  without  degenerating. 

§  16.  Survival  of  Institutions.  We  have  seen  that  an  institu- 
tion which  ceases  to  be  functional  without  dissolution  —  either 
voluntary  or  enforced  —  ensuing,  tends  to  atrophy  and  disappear, 
while  its  resources  are  appropriated  by  other  institutions.  It 
now  remains  to  account  for  the  fact  that  this  atrophy  does  not 
generally  end  in  total  disappearance.  The  two  following  hypoth- 
eses may  be  made :  1 .  The  structure  of  a  non-functional  institu- 
tion may  remain  intact ;  2.  The  institution  may  survive,  but  in 
a  rudimentary  condition. 

§  17.  The  Integral  Persistence  of  an  Institution.  A  non- 
functional institution  may  survive  and  retain  its  structure  and 
resources  in  the  following  cases:  1.  By  the  intervention  of  some 
superior  authority  to  prevent  its  suppression ;  2.  When,  while 
ceasing  to  be  functional,  it  continues  to  be  useful,  though  indirectly 
so ;  3.  When  its  existence  is  maintained  out  of  respect  for  old 
traditions. 

§  18.  Survival  of  Institutions  in  a  Reduced  State.  It  has  been 
shown  that  a  number  of  institutions  in  a  state  of  decline  continue 
to  be  maintained,  because  they  are  still  useful  in  spite  of  their 
reduced  condition. 

This  is  the  case  with  the  symbolic  ceremonies  which  in  former 
days  accompanied  the  drawing  up  of  solemn  contracts.^     The  per- 

1  According  to  Viollet  in  "Histoire  du  droit  civil  fr.",  p.  607,the  primi- 
tive assembly  of  the  people  still  survives,  though  in  a  reduced  condition, 
in  the  Roman  mancipatio,  and  in  Scandinavia  in  a  solemn  form  of  sale 
called  the  scotatio. 

"I  believe,"  he  says,  "that  it  was  the  primitive  sale  of  German  law,  a 
sale  concluded  and  ratified  in  a  popular  assembly,  that  gave  rise,  in  the 


56S  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

sistence  of  institutions  in  a  reduced  condition,  but  which  are  not 
directly  useful  to  any  one,  may  be  attributed  to  one  of  two  causes, 
either  to  respect  for  tradition  or  to  the  insignificance  of  the  ves- 
tiges which  remain. 


IV.  Resume  and  Conclusions 

§  19.  Resume.  When  an  institution  or  an  organ  ceases  to  be 
functional  or  in  any  way  useful,  it  very  soon  disappears  altogether. 
If,  as  happens  in  some  exceptional  cases,  it  persists,  it  is  because 
neither  of  the  chief  factors  in  causing  atrophy,  variability  or  selec- 
tion, has  intervened. 

Sometimes  the  vestiges  are  of  too  insignificant  a  nature  to  call 
for  their  removal  by  either  artificial  or  natural  selection,  and 
sometimes  their  existence  is  ensured  by  the  lack  of  variability,  as 
in  the  case  of  the  persistence  of  flowers  in  plants  which  multiply 
asexually.  This  absence  of  variation  occurs  equally  in  the  social 
domain,  especially  in  matters  connected  with  religion,  wherein 
ancient  customs  are  credited  with  a  divine  origin.  Religions  may 
pass  away,  philosophies  may  be  transformed,  and  old  beliefs  cease 
to  prevail,  but  the  remnants  of  old  creeds,  conveyed  by  popular 
tradition  through  the  centuries,  defy  destruction  by  modern  in- 
novations. 

"Their  value  lies,"  says  Houzeau  in  his  "Etude  de  la  Nature," 
"  in  the  establishment  of  a  chain  between  successive  generations. 
The  memory  of  an  individual  may  be  regarded  as  constituting 
his  personality.  Take  from  him  the  memory  of  his  past,  and  he 
is  left  at  a  point  in  time  wherein  there  is  no  stability  and  complete 
isolation.  To  be  himself,  a  man  requires  not  only  his  recollections, 
but  a  knowledge  of  his  past  habits  and  traditions.  When  a  savage 
is  removed  from  his  fellows  and  transported  to  new  surroundings 
in  a  distant  country,  he  loses  all  knowledge  of  his  former  condition. 
Society  itself,  made  up  as  it  is  of  customs  and  prejudices,  con- 
stitutes history.  The  mirror  of  the  past  is  exhibited  in  the  con- 
sciousness of  the  collective  individual  which  is  called  a  nation. 
What  link  shall  we  have  with  former  generations  if  not  a  heritage 

Middle  Ages,  to  the  Scandinavian  scotatio.  So  also  in  the  case  of  the 
Roman  mancipatio  there  has  long  been  believed  to  exist  the  remnants 
of  a  popular  assembly.  The  dumb  witnesses  in  the  scotatio  appear  to 
me  the  petrified  representatives  of  the  German  tribe  or  village ;  and,  in 
the  opinion  of  good  judges,  the  witnesses  in  mancipatio  are  no  other  than 
symbolic  statutes  of  the  five  classes  of  the  Roman  people.  However, 
this  is  mere  hypothesis." 


Chap.  XXIV.]  DEGENERATION  569 

of  their  ideas  —  i.e.  of  their  discoveries  and  their  mistakes? 
Nations,  like  individuals,  are  continually  modifying  this  inherited 
legacy,  but,  like  the  individual,  they  cannot  get  away  from  it 
without  breaking  the  thread  which  has  made  them  themselves." 

(VI)  General  Conclusions 


AH  evolution  is  at  once  progressive  and  retrogressive.  All 
modifications  of  organs  and  institutions  are  attended  by  retro- 
gression. This  occurs  equally  in  the  modifications  of  organisms 
and  of  societies.  All  existing  forms,  whether  organic  or  social, 
have  undergone  certain  modifications,  and,  as  a  result,  have  lost 
some  parts  of  their  structure.  This  universality  of  degenerative 
evolution  may  be  proved  either  by  the  comparative  method,  or 
by  showing  that  all  organisms  contain  rudimentary  organs,  and 
that  all  societies  contain  survivals. 

II 

Degenerative  evolution  follows  no  definite  path,  and  can  in  no 
w^ay  be  regarded  as  constituting  a  return  to  the  primitive  con- 
ditions. In  some  cases  —  when  one  cause  of  dissolution  equally 
and  simultaneously  affects  all  the  parts  of  an  institution  or  an 
organism  —  the  most  complicated  and  delicate  structures  are  the 
first  to  disappear ;  but  it  must  not  be  taken  as  a  general  principle 
that  the  niost  complicated  structures  are  necessarily  the  most 
recent,  and  that  consequently  degeneration  always  retraces  the 
path  of  progress. 

Evolution  is  irreversible,  and  accordingly,  with  a  few  more  or 
less  obvious  exceptions,  we  draw  the  following  conclusions :  — 

1.  That  an  institution  or  an  organ  which  has  once  disappeared 
never  reappears. 

2.  That  an  institution  or  organ  once  reduced  to  the  condition 
of  a  vestige  cannot  be  re-established  and  resume  its  former  func- 
tions. 

3.  Neither  can  they  assume  fresh  functions. 

Ill 

Degenerative  evolution  is  brought  about  by  a  limitation  in  means 
of  subsistence  —  either  in  nutriment,  capital  or  labor.  In  bi- 
ology the  principal  if  not  the  sole  agents  in  its  accomplishment 


570  PROCESS   OF  LEGAL  EVOLUTION  [Part  HI. 

are  the  struggle  for  existence  between  the  various  organs,  and  the 
struggle  for  existence  between  the  various  organisms. 

In  sociology  it  is  artificial  selection  which  is  the  dominating 
agent,  and  natural  selection  plays  only  a  secondary  part. 

The  occasional  causes  of  degenerative  evolution  are  inutility 
of  function,  insufiiciency  of  nutriment  or  resource,  and  (in  biology 
only)  lack  of  space. 

An  institution  or  an  organ  which  has  ceased  to  be  functional, 
and  has  also  ceased  to  be  useful  either  directly  or  indirectly,  con- 
tinues to  exist  if  neither  variability  nor  selection  intervene. 


Chapter  XXV 

THE   EVOLUTION   OF   CIVIL   LAW* 
INTRODUCTION 
§  L    The  Spiral  Curve  of  Evolution. 
Topic  I.    Direction  op  Juridical  Evolution 


§  2.  Evolutionary  Movements  to 
be  Studied. 

§  3.  From  Customary  to  Ordained 
Law  and  to  Judge-De- 
clared Law. 

(1)  Customary  Law. 

(2)  Ordained  Law. 

(3)  Judge-Declared  Law. 

§  4.  From  Oral  to  Written  and  to 
Codified  Law. 

(1)  The  Customary  and  Fluid 

Stage. 

(2)  The  Ordained  and  Crys- 

tallized Stage. 

(3)  The    Neo-Customary    or 
Judicial  Stage. 

§    5.    From  a  Law  of  Nature  to  a 

Positive   Law   and  a   Law 

of  Equity. 
§    6.    From  Local  to  General  Law. 
§    7.   From    Simple    to     Complex 

Law. 
§    8.    From  Material  to  Immaterial 

Law. 
§    9.    From    Formal    to    Formless 

Law. 
§  10.    From   Theocratic   to   Secular 

Law. 
§11.    From  Criminal  to  Civil  Law. 
§  12.    From    Civil    to    Commercial 

and  Industrial  Law. 
§  13.    From     Political     to     Private 

Law. 
§  14.    From  Collective  to   Individ- 
ualistic Law. 
§  15.    From  Esoteric  to  Popularized 

Law. 


§  16.  From  the  Outward  Act  to  the 
Mental  Act  as  Creative  of 
a  Right. 

§  17.  From  Rights  "in  rem",  or 
Real  Rights,  to  Rights  "in 
personam",  or  Obligatory 
Rights. 

§  18.  From  a  Law  of  Nominate 
Relations  to  a  Law  of  In- 
nominate Relations. 

§  19.  From  Concrete  to  Abstract 
Rights. 

§  20.  From  Immediate  to  Deferred 
Rights. 

§21.  From  Gratuitous  to  Commu- 
tative and  Aleatory  Trans- 
actions. 

§  22.  From  Legal  Regulation  to 
Liberty  of  Contract. 

§  23.  From  Unilateral  to  Bilateral 
Agreements. 

§  24.  From  Family  to  Individual 
Rights. 

§  25.  From  Ethnic  to  Territorial 
Law. 

§  26.  From  Exclusion  to  Admis- 
sion of  Foreigners. 

§  27.  From  a  Law  of  Violent 
Methods  to  a  Law  of 
Peaceful  Methods  and  of 
Equitable  Aims. 

§28.  From  Oral  to  Written  Form 
and  the  Return  to  Oral 
Form. 

§  29.  From  Immovable  to  Movable 
Property. 

§  30.   From  Reality  to  Fiction. 


1  [By  Raoul  de  la  Grasserie,  Laureate  of  the  "Institut  de  France", 
Correspondent  to  the  Ministry  of  Public  Instruction,  Member  of  the 
"Institut  International  du  Sociologie",  "Docteur  en  Droit",    Judge  of 

571 


572  PROCESS    OF    LEGAL   EVOLUTION  [Part   III. 

Topic   II.     Intensity  of  the  Evolutionary  Movement 


§  31.  Arrestment. 

§32.  Oscillation. 

§  33.  Regression. 

§  34.  Resumption. 


35.  Acceleration     and     Retarda- 

tion. 

36.  Conclusion. 


Introduction 


§  1 .  The  Spiral  Curve  of  Evolution.  Civil  law  and  the  sociol- 
ogy which  it  contains  may  be  studied  as  it  appears  in  any  given 
country  and  at  any  given  time,  or  in  its  historical  and  evolution- 
ary development  and  its  entirety.  The  latter  method  possesses 
greater  concrete  reality,  because  present  time  is  an  abstract  con- 
ception and  such  a  limited  investigation  presents  the  effect  of  an 
instantaneous  photograph.  We  propose,  therefore,  to  examine 
that  line  of  evolution  which  represents  law  in  a  dynamic  state. 
Our  conclusions  are  especially  susceptible  of  verification  since 
they  may  be  tested  by  the  history  of  each  country,  whereas  the 
results  of  a  static  study  of  law  are  less  so.  For  this  reason  we  lay 
special  stress  upon  this  chapter.  Indeed,  dynamic  study  may  be 
said  to  be  the  completion  of  a  static  study  of  law.  The  latter 
observes  a  single  theoretical  instant,  an  abstraction ;  dynamic  law, 
on  the  other  hand,  is  a  perpetual  progression,  and  is  alone  real, 
for  everything  is  in  motion,  at  least  inwardly;  everything  is  in 
ceaseless  transformation. 

We  shall  first  observe  this  movement  with  respect  to  its  direc- 
tion, which  will  be  presently  explained ;  then  with  respect  to  its 
speed  (by  which  is  meant  its  normal  speed  whether  of  acceleration 
or  retardation),  its  oscillations,  its  pauses,  its  return  at  times  to 
the  point  of  departure,  its  arrestment,  and  finally  its  acquired 
speed.  In  a  word,  we  shall  examine  successively  all  the  varia- 
tions in  its  progress,  with  regard  to  direction  and  speed. 

Our  method  of  exposition  will  be  the  reverse  of  our  own  personal 
investigation.  This  began,  according  to  the  scientific  method,  by 
observation;  we  then  compared,  and  finally  derived  and  formu- 
lated, our  laws  by  induction.  We  have  preferred  to  state  first 
the  sociological  laws  which  have  been  discovered,  that  they  might 
throw  an  introductory  light  upon  the  whole  subject.  There  would 
still  remain  the  extension  of  this  evolution  into  the  future,  which 

the  Civil  Tribunal  of  Nantes.     The  present  chapter  forms  part  II,  chap. 
XX,  pp.  285-411  of  "Les  principes  sociologiques  du  droit  civil",  1906. 

The  translation  is  by  Lay  ton  B.  Register,  Esq.,  member  of  the  Phila- 
delphia Bar  and  Lecturer  in  the  Law  School  of  the  University  of  Pennsyl- 
vania.] 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  573 

would  be  quite  possible  by  an  application  of  its  predetermined 
laws.  But  that  would  not  fall  properly  within  the  province  of 
pure,  but  rather  within  that  of  applied  sociology. 

Legal  evolution  has  not  everywhere  reached  the  same  stage, 
just  as  the  same  geological  formations  have  not  everywhere  come 
to  the  surface ;  certain  of  them  are  still  in  a  volcanic  state.  So 
also,  the  juridical  formation  visible  to  us  may  be  exceedingly 
ancient  without  contradicting  sociological  laws  any  more  than 
geologic  law  is  denied  by  a  re-exposure  of  some  stratum.  We 
should  remember  this  as  a  corroboration  of  the  laws  which  we  shall 
now  set  down. 

Are  there  any  laws  governing  general  evolution  with  regard 
to  direction,  or  speed,  or  which  show  the  existence  of  progress  at 
all  ?  We  firmly  believe  that  there  are,  and  hope  to  be  able  to 
prove  them  by  numerous  examples.  If  exceptions  exist,  they  are 
explainable;  but  they  are  very  few.  Though  these  laws  govern 
different  matters,  they  nevertheless  converge,  and  it  is  possible, 
once  having  established  them  in  each  branch,  to  unite  them  in 
an  ordered  and  consistent  system. 

The  law  of  direction  of  juridical  movement  is  especially  interest- 
ing. No  one  doubts  that  movement  exists,  but  whether  movement 
and  progress  are  identical  has  often  been  debated.  We  believe 
definitely  that  there  is  identity,  though  perhaps  not  always  evi- 
dent.    The  regressions  are  but  apparent  or  momentary. 

Progress  takes  place  towards  greater  equity,  serviceableness, 
and  flexibility.  Do  we  move  in  a  straight  line?  Do  we  always 
advance,  though  with  varying  speed?  Do  we  never  retreat,  or, 
like  the  planets,  do  we  describe  a  circle;  for,  as  they  say,  there 
is  nothing  new  under  the  sun.  As  a  last  alternative,  do  we  follow 
some  other  system  which  leads  us  astray  though  the  path  of 
evolution  lies  open  to  view  ? 

We  do  not  advance  along  a  closed  cfrcle,  for  that  would  not  be 
progress,  and,  on  the  contrary,  progress  has  been  definite  and 
evident.  Nor  do  we  move  along  a  straight  line,  for  such  a  line 
can  scarcely  be  predicated  of  anything  human,  or  even  of  inani- 
mate things.  Not  only  are  there  apparent  retrogressions  con- 
tradicting such  an  hypothesis,  but  it  is  also  certain  that  much 
of  our  progress  is  accomplished  by  returns  to  primitive  conditions, 
and  this  fact  is  not  comprehensible  unless  we  have  the  key  to  the 
movement. 

It  was  Vico,  we  believe,  who  in  the  1600  s  found  this  key.  He 
discovered  the  course  of  social  events,  as  Galileo  discovered  the 


574  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

orbits  of  the  heavenly  bodies;  later  Goethe  formulated  the  law. 
The  course  of  evolution  is  a  spiral.^ 

What  are  the  essentials  of  spiral  motion?  We  know  what  it 
is  to  turn  in  a  spiral,  to  revolve  like  a  screw,  always  rising,  always 
turning.  It  does  not  describe  a  straight  ascending  line,  but  a 
curve ;  yet  this  curve  is  neither  vertical  nor  horizontal  with  rela- 
tion to  its  base.  Were  it  horizontal,  the  resultant  would  be  a 
closed  circle ;  were  it  vertical,  it  would  appear  as  a  perpendicular 
line,  with  some  deviations  perhaps.  It  is  in  a  spiral  movement 
that  each  new  point  rises  above  the  preceding  and  yet  always  de- 
scribes a  circle.  Such  is  the  movement  of  juridical  evolution. 
When  applied  to  evolution,  we  secure  the  results  which  we  now 
propose  to  set  forth,  but  which  it  will  be  well  to  illustrate  first  by 
an  example. 

The  point  of  departure  of  the  evolution  of  the  condition  of 
woman  was  matriarchy,  a  peculiar  form  of  feminism,  long  unsus- 
pected. The  family  of  the  woman  alone  counted;  the  son  did 
not  inherit  from  the  father;  the  paternal  estate  passed  to  the 
uterine  brother;  paternity  was  not  recognized.  The  reason  was 
that  at  that  epoch  paternity  could  not  be  certain  or  provable. 
Then  came  an  undoubted  step  forward;  civilization  was  mount- 
ing the  spiral  curve  of  evolution.  Patriarchy  came  to  dominate ; 
the  father,  more  robust  than  the  mother,  was  better  able  to  assure 
the  life  of  the  child,  who  thus  became  attached  to  a  true  family 
farther  removed  from  promiscuity  than  was  polyandry.  Then  the 
bonds  of  patriarchy  were  tightened ;  the  woman  might  no  longer 
be  repudiated  at  will ;  marriage  became  almost  indissoluble.  But 
this  alluring  picture  had  a  shadow.  Woman  was  mistreated  and 
esteemed  inferior;  she  could  dispose  neither  of  her  property  nor 
her  person;  she  fell  under  a  heavy  yoke.  Is  she  now  to  escape 
from  this?-  There  is  no  doubt  of  it;  slowly,  yet  surely;  thus 
evolution  and  progress  decree.  Her  progress,  however,  seems  to 
be  backward ;  she  appears  to  be  returning  almost  to  primitive 
conditions.  Marriage  has  broken  down,  or  nearly  so;  through 
divorce,  the  woman  is  safe  from  man's  brutality,  but  not  from 
his  caprice;  she  finds  herself  barred  from  family  life.  She  is 
more  independent,  it  is  true;  more  so,  indeed,  than  she  might 
please,  for  the  necessities  of  life  are  no  longer  assured  her.     The 

^  In  a  special  monograph  we  developed  the  consequences  and  limita- 
tions of  this  idea,  not  restricting  ourselves  to  the  specific  subject  of  juridi- 
cal evolution:  **De  la  forme  graphique  de  revolution"  (Paris,  Giard 
and  Bri^re). 


Chap,   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  575 

standards  of  morality  gradually  formed  under  patriarchy  are 
disappearing ;  at  times  we  seem  very  near  to  primitive  promiscuity. 
But,  in  seeming  to  return,  we  have,  in  reality  progressed ;  evolu- 
tion has  completed  a  spiral  revolution;  the  new  matriarchy  is 
not  identical  with  the  old. 

This  example  suffices;  we  will  later  see  how  throughout  the 
whole  field  of  law  the  same  process  is  going  on. 

But  once  evolution  has  made  a  turn  of  the  spiral  it  does  not 
cease,  for  evolution  is  endless.  It  undertakes  a  second  revolution 
along  a  similar  course.  In  some  instances  it  has  already  com- 
pleted it,  in  others  it  is  only  in  process  of  doing  so.  Once,  how- 
ever, the  initial  point  is  determined,  it  is  possible  to  compre- 
hend the  point  to  which  it  may  now  have  attained.  For  most 
institutions  the  first  revolution  has  been  completed  and  a  second 
has  begun ;  but  in  a  few  we  have  scarcely  yet  concluded  the  first 
turn. 

We  shall  divide  the  present  chapter  into  two  parts.  In  our 
analysis  and  investigation  of  juridical  movement  we  shall  first 
study  the  general  laws  of  its  direction,  and  second  of  its  intensity, 
that  is  to  say,  its  arrestment,  retardation,  and  acceleration,  in 
accordance  with  what  has  already  been  said. 

Topic  I.     Direction  of  Juridical  Evolution 

§  2.  Evolutionary  Movements  to  be  Studied.  We  shall  examine 
successively  the  following  evolutionary  movements  of  law : 

1,  from  Custom  to  Ordained  Law  and  to  Judge-Declared  Law; 

2,  from  Oral  to  Written  and  to  Codified  Law ; 

3,  from  a  Law  of  Nature  to  a  Positive  Law  and  a  Law  of 

Equity ; 

4,  from  Local  to  General  Law ; 

5,  from  Simple  to  Complex  Law ; 

6,  from  Material  to  Immaterial  Law ; 

7,  from  Formal  to  Formless  Law ; 

8,  from  Theocratic  to  Secular  Law ; 

9,  from  Criminal  to  Civil  Law ; 

10,  from  Civil  to  Commercial  and  Industrial  Law ; 

11,  from  Political  to  Private  Law ; 

12,  from  Collective  to  Individualistic  Law ; 

13,  from  Esoteric  to  Popularized  Law ; 

14,  from  the  Outward  Act  to  the  Mental  Act  as  Creative  of  a 

Right; 


576  PROCESS   OF   LEGAL  EVOLUTION  [Part   III. 

15,  from  Rights  "  in  rem  "  or  Real  Rights,  to  Rights  ''  in  per- 

sonam ",  or  Obligatory  Rights ; 

16,  from  a  Law  of  Nominate  Relations  to  a  Law  of  Innominate 

Relations ; 

17,  from  Concrete  to  Abstract  Rights; 

18,  from  Immediate  to  Deferred  Rights ; 

19,  from  Gratuitous  to  Commutative  and  Aleatory  Transactions ; 

20,  from  Legal  Regulation  to  Liberty  of  Contract ; 

21,  from  Unilateral  to  Bilateral  Agreements; 

22,  from  Family  to  Individual  Rights : 

23,  from  Ethnic  to  Territorial  Law ; 

24,  from  Exclusion  to  Admission  of  Foreigners ; 

25,  from  a  Law  of  Violent  Methods  to  a  Law  of  Peaceful 

Methods  and  of  Equitable  Aims ; 

26,  from  Oral  to  Written  Form  and  the  Return  to  Oral  Form ; 

27,  from  Immovable  to  Movable  Property : 

28,  from  Reality  to  Fiction „ 

§  3.  From  Customary  to  Ordained  Law  and  to  Judge- Declared 
Law.  One  of  the  earliest  and  most  fundamental  of  these  move- 
ments is  the  first  which  we  have  mentioned.  It  relates  to  the 
production  itself  of  law  through  the  operation  of  a  legislative 
organ,  or  of  whatever  takes  its  place.  It  involves  the  common 
antithesis  between  customary  and  non-customary  law.  The 
latter  we  shall  term  "  ordained  "  in  preference  to  written  law, 
because  customary  law  may  also  become  written.  In  so  doing 
we  shall  escape  ambiguity. 

(1)  Customary  Law.  Undoubtedly  customary  law  every- 
where first  made  its  appearance,  springing  from  the  inner  recesses 
of  the  mind.  Its  essential  characteristic  is  that  it  forms  uncon- 
sciously. People  did  not  will  that  custom  arise ;  no  one  willed  it ; 
it  has  hardly  yet  become  conscious.  It  was  as  involuntary  as 
was  language  and  society.  No  race  ever  agreed  to  employ  such 
or  such  words  or  signs  to  convey  an  idea ;  no  express  social  con- 
tract ever  existed.  The  same  is  true  of  custom.  It  was  also 
purely  local  and  extended  gradually  through  the  struggle  for 
existence,  waged  between  groups  of  persons.  It  was  handed  down 
by  tradition ;  and  this  was  natural  since  writing  was  hardly  known. 
To  aid  the  memory  it  was  put  into  verses,  or  maxims  in  verse  form. 
These  legal  proverbs  survive  today. 

How  did  custom  originate?  The  great  sociologist,  Gabriel 
Tarde,  held  that  it  was  by  imitation.^  Neighbors  imitated  one 
1  [See  Vol.  II,  pp.  36  seq.,  of  this  series.] 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  577 

another;  but  above  all  the  best  usage  was  followed  or  the  one 
practiced  by  one's  superiors  in  life.  Certainly  imitation  was  a 
powerful  factor,  but  it  was  neither  the  only  factor  nor  the  strongest. 
We  have  found  a  more  exact  analogy  elsewhere.  There  is  a  phe- 
nomenon which  produces  today  an  effect  identical  with  that  of 
custom ;  it  is  style.  We  obey  it  with  the  same  spontaneity  and 
yet  it  is  no  less  tyrannical.  Indeed,  early  legal  customs  often 
concerned  the  very  matters  which  are  now  governed  by  style. 
For  example,  in  China  the  custom  of  wearing  mourning,  regulated 
by  style  with  us,  was  there  legally  regulated  by  custom.  This 
shows  us  the  origin  of  custom.  Style  results  from  homogeneity. 
People  of  the  same  nation,  of  the  same  province,  of  the  same  class 
obey  it,  not  in  imitation,  but  because  they  are  in  reality  alike, 
and  the  style  which  they  practice  is  the  consequence  of  their  re- 
semblance.    So  it  was  with  ancient  custom. 

According  to  other  authors,  customary  law  had  no  such  origin ; 
it  never  was  a  law  of  the  people,  that  is,  it  never  originated  from 
below.  A  law  having,  as  we  shall  see,  so  scientific  a  character, 
could  not,  according  to  them,  have  so  humble  a  source.  Its 
true  nature  has  been  misunderstood.  Law  was  custom,  but  not 
the  custom  of  the  whole  people.  It  was  that  of  the  courts,  of 
enlightened  persons ;  it  was  an  early  form  of  judge-declared  law. 
What  has  taken  place  in  the  last  period  of  juridical  evolution 
must  have  occurred  at  the  beginning.  We  will  examine  the 
theory  later  in  detail ;  let  it  be  understood  at  once,  however, 
that  we  do  not  subscribe  to  it.  In  certain  countries  it  was  no 
doubt  true,  as,  for  instance,  where  theocracy  exercised  a  strong 
influence  upon  institutions ;  but  not  elsewhere.  Custom  is  custom, 
nothing  else.  It  is  neither  an  extension  of  theocracy,  nor  an  an- 
ticipation of  judge-declared  law. 

It  is  human  and  of  the  people ;  it  grows  by  successive  deposits ; 
it  remains  simple  and  characterized  by  the  spirit  of  routine,  like 
the  people  themselves.  No  doubt  it  may  appear  strange  that 
those  who  were  superstitious  and  ignorant  could  produce  insti- 
tutions, at  times  very  remarkable.  But  is  this  not  equally  re- 
markable of  language,  which  is  superior  to  the  intellect  of  the 
speaker  and  which  he  could  not  have  consciously  originated  ?  We 
must  not  confuse  conscious  with  unconscious  ability. 

Customary  law  has  disappeared  among  certain  peoples,  leaving 
but  traces.  In  France  the  Civil  Code  refers  us  in  places  to  local 
usage.  But  this  is  exceptional ;  such  a  delegation  has  to  do  with 
purely  local  custom  to  which  the  legislature  has  granted  deference. 


578  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 


Does  pure  customary  law,  regarded  as  a  mere  instrument,  realize 
in  its  essence  the  ideal  of  a  law  of  nature  or  of  equity,  which  or- 
dained law  so  often  offends?  Yes  generally,  though  not  always. 
It  is  certainly  an  individualistic  law  as  compared  with  ordained 
law  which  is,  above  all,  societary,  and  restrains  liberty  more  than 
needful.  It  can,  however,  be  unyielding  among  a  half -savage, 
egotistical  race  possessed  of  but  a  feeble  notion  of  justice.  It  is 
simpler  than  the  phase  of  law  succeeding  it  and  contains  fewer 
needless  restraints.  The  last  stage  of  the  evolution,  that  of 
judge-declared  law,  more  perfect  for  the  same  reasons,  marks  a 
return  towards  custom. 

Customary  law  has  not  everywhere  disappeared.  It  is  very 
remarkable  that  it  remains  intact  in  the  Anglo-American  system 
and  that  it  does  not  even  Seem  likely  to  be  replaced  in  great  part 
by  legislative  law.  Nor  has  it  disappeared  suddenly  to  make 
way  for  ordained  law.  The  two  have  existed  side  by  side  for  long 
periods  and  it  is  a  partnership  which  is  of  great  interest  to  the 
student. 

(2)  Ordained  Law.  History  shows  that  ordained  law  is  des- 
tined to  supplant  customary  law.  Let  us  examine  the  important 
stages  of  its  evolution. 

Statutory  law  differs  from  custom  in  that  the  latter  originates 
from  below,  that  is,  from  the  collective  intellect,  while  the  former 
originates  from  above.  So  far  as  the  political  forces  which  create 
it  are  concerned,  legislation  is,  relatively  speaking,  aristocratic  no 
matter  what  its  mode  of  production.  At  times,  indeed,  it  springs 
from  a  most  exalted  source,  as  when  its  origin  appears  divine. 

Ordained  law  drives  customary  law  back.  Being  of  inferior 
origin,  custom  seems  disqualified,  so  to  speak,  before  statutory 
law,  which  is  the  product  of  pure  reason.  Yet  this  is  the  very 
reason  why  custom  will  ultimately  regain  its  authority,  at  least 
as  an  organ  of  production. 

Customary  law  is  involuntary  and  spontaneous  while  ordained 
law  is  conscious  and  voluntary,  often,  indeed,  harsh  and  tyran- 
nical. The  latter  emanates  from  above,  but  it  does  not  always 
originate  from  the  same  source.  We  must  distinguish  divine 
law;  monarchical  law;  aristocratic  law,  the  product  of  science; 
and  democratic  law,  all  of  which  almost  universally  succeed  one 
another  in  just  this  order. 

Ordained  law  is  of  various  sorts :  inspired ;  secularized  by 
monarchy ;  based  upon  earlier  legal  systems ;  democratized. 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  579 

(a)  Inspired  ordained  law.  The  earliest  law  (and  it  has  left 
its  trace  everywhere)  is  divine  or  theocratic  law.  To  be  more 
exact  we  should  say  inspired  law,  for  we  are  not  dealing  here 
either  with  the  influence  of  theology  and  canon  law  upon  civil 
law  or  with  religious  institutions,  such  as  the  oath,  borrowed  from 
the  canon  law,  but  with  something  quite  different,  namely,  laws 
and  decisions  or  the  direct  discovery  by  inspiration  of  what  is 
just  and  fitting  as  a  general  rule  or  in  a  particular  instance.  The 
lawmaker  or  magistrate  invoked  God,  and  decreed  what  He 
dictated.  As  in  customary  law,  so  here,  to  avoid  turning  con- 
tinually to  consult  the  fountain  head  (for  that  would  be  impious), 
there  existed  case-law  or  judgment  founded  upon  precedent, 
both  concrete  and  abstract.  A  consultation  or  a  command  of 
the  divinity  thus  served  for  all  future  time.  We  shall  refer  to 
this  again  in  greater  detail. 

This  method  of  ascertaining  the  law  operated  in  two  ways.  It 
affected  sometimes  the  legislature  properly  speaking,  sometimes 
the  judiciary ;  but  as  to  the  latter  it  only  applied  in  doubtful  cases, 
as  a  rule  of  interpretation. 

It  obtained,  no  doubt,  to  some  extent  everywhere,  for  the  origins 
of  law  are  enveloped  in  theocracy.  It  has  disappeared  in  some 
countries,  but  remains  in  force  in  certain  others  where  the  stamp 
of  theocracy  has  been  too  strong  to  be  effaced. 

In  such  countries,  therefore,  the  very  words  contained  in  in- 
spired texts  have  been  regarded  as  unalterable,  and  it  has  only 
been  through  fictions  that  the  law  has  developed. 

Q))  Secularized  ordained  law,  or  monarchical  law.  In  other  coun- 
tries wherever  the  first  period  of  inspired  ordained  law  was  passed, 
the  secularized  form,  pronounced  by  the  monarch,  succeeded. 
The  period  of  secularization  was  long,  and  the  code  or  rather  the 
laws  prescribed  by  the  sovereign  preserved  a  sacred  character. 
They  came  into  being  as  royal  ordinances  which  at  first  did  not 
entirely  repeal  either  customary  or  inspired  law,  but  were  superim- 
posed upon  these.  Force  created  law  at  that  time ;  "Because  such 
is  our  pleasure  "  were  the  words  of  the  king.  The  sociological 
element   supplanted   the   psychological   or   biological   elements.^ 

1  [The  author  explains  his  use  of  the  terms  biological,  psychological, 
and  sociological  as  applied  to  laws,  at  pp.  9-11.  "Biological  elements 
are  those  resulting  from  man's  physical  nature  itself  .  .  .  for  example, 
filiation.  .  .  ."  The  psychological  elements  "consist  of  everything 
depending  upon  the  will  and  consent."  "The  sociological  elements  are 
those  which  result  from  the  interference  of  society  in  the  interests  of 
society."  —  Translator.] 


580         .  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

Social  utility,  real  or  mistaken,  was  directly  weighed.  This  form 
of  law  appeared  at  Rome  in  the  decrees  of  the  senate  and  the 
edicts,  and  in  France  in  the  ordinances.  The  king  was  held  al- 
most in  the  same  respect  as  God.  But  he  was  a  lay  god  and  this 
fact  profoundly  distinguished  the  two  periods. 

(c)  Antiquarian  ordained  law.  The  next  stage  was  that  of 
scientific  law;  but  it  was  only  such  as  science  in  an  embryonic 
state  could  produce.  It  took  the  form  of  a  veneration  for  the 
traditions  of  an  epoch  of  higher  civilization  which  it  aimed  to 
revive  and  to  superimpose  upon  existing  civilization.  This  phase 
has  not  arisen  everywhere;  it  was  observable  in  countries  where 
there  was  a  prior  tradition  to  inspire  renascence,  but  not  in  coun- 
tries of  juristic  originality.  Thus  it  was  observable  in  France 
where  the  older  Roman  law,  directly  or  through  the  canon  law, 
came  to  be  a  new  source.  It  was  not  a  survival  of  the  Roman  law 
in  the  provinces  of  the  "  droit  ecrit" ,  but  a  superposition  upon 
existing  customs  and  ordinances  at  the  time  of  its  reception  into 
France  and  Germany.  It  was  proclaimed  as  "  written  reason  '' ; 
it  acted  as  a  medium  to  make  the  various  customs  cohere.  Its 
influence  upon  the  development  of  Islamic  law  was  similar. 

It  was  elaborated  by  scientific  minds,  and  there  was  a  period 
when  it  came  very  near  to  becoming  the  law  of  the  world. 

Under  ordained  law  many  combinations  of  facts  remained  un- 
foreseen by  legislative  enactment.  It  was  again  necessary  to 
fall  back  upon  concrete  and  abstract  case-law,  as  we  shall  presently 
see.  When  the  Roman  law  reached  the  stage  of  ordained  law, 
the  "  responsa  prudentum "  intervened  to  fill  this  function. 
Customary  law  existed  during  the  first  part  of  this  period,  then 
disappeared. 

(d)  Democratic  law.  Law  lastly  reached  a  fourth  stage,  that 
of  democratization.  In  this  stage  it  is  no  longer  imposed  from 
above;  it  again  reaches  down  and  finds  inspiration  from  below, 
from  the  people,  with  this  difference,  that  the  people  do  not  create 
this  law  involuntarily  and  unconsciously  as  formerly,  but,  on  the 
contrary,  after  reflection.  In  this  respect  democratic  law  is  dis- 
tinct from  custom ;  it  also  differs  in  that  it  is  always  codified.  On 
the  other  hand  it  resembles  monarchical  law  in  that  it  is  also  or- 
dained. Its  method  of  production  conforms  to  constitutional 
conditions.  At  Rome  it  might  have  been  a  plebiscite,  or  legisla- 
tion in  the  strict  sense,  or  a  decree  of  the  senate.  Elsewhere  it 
has  originated  through  national  delegates  convened  in  a  parlia- 
ment, or  through  a  referendum  or  direct  popular  vote  as  in  some 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  581 

of  the  Swiss  Cantons.  In  the  latter  case  it  is  comparable  to  cus- 
tom. And  yet  an  abyss  separates  them,  for  the  one  is  involuntary 
and  unconscious,  while  the  other  is  not.  Its  method  of  pro- 
duction is  no  more  scientific  than  that  of  monarchical  law.  It 
is  a  new  form  of  ordained  law. 

Democratic  ordained  law,  like  the  other  forms  of  law,  is  often 
deficient.  To  fill  the  deficiencies,  judicial  legislation  has  fre- 
quently to  be  called  upon.  It  is  this  which,  after  such  humble 
beginnings,  is  destined  gradually  to  expand  the  field  of  ordained 
law  and  lead  to  a  new  mode  of  production. 

Evidently  these  various  sorts  of  ordained  law  have  one  feature 
in  common  in  spite  of  their  differences.  In  every  instance  the 
law,  which  was  amorphous  as  custom,  has  been  crystallized.  It 
is  exceedingly  interesting  to  observe  this  crystallization.  It  has 
occurred  just  as  a  physical  or  chemical  phenomenon.  We  know 
how  in  saturated  liquids  centers  of  crystallization  form  little  by 
little  and  spread  covering  the  entire  surface  until  rigidity  is  uni- 
versal and  absolute.  So  it  is  with  law.  At  first  certain  centers 
of  crystallization  appeared.  With  the  Romans  they  were  the 
constitutions  of  the  emperors  and  the  decrees  of  the  senate;  in 
France  they  were  the  royal  ordinances.  They  governed  the  more 
important  matters  which  were  never  regulated  with  sufficient 
energy  by  custom  or  the  edicts  of  the  Roman  praetor.  With  time 
these  became  more  frequent,  spreading  into  the  fluid  customary 
law  and  crystallizing  more  and  more  of  it,  until  under  Justinian 
the  process  was  complete.  From  then  on,  ordained  law  reigned 
alone ;  crystallization  had  been  completely  realized. 

Over  this  there  was  reason  to  rejoice  without  reserve.  All 
contingencies  were  so  far  as  possible  provided  for  legislatively, 
even  the  purely  casuistical,  as  in  the  Digest.  It  was  merely  a 
matter  of  mechanical  application. 

Such  was  the  progress  realized;  a  body  of  law  certain  and 
universal  was  provided.  But  from  that  moment  the  law  was 
destined  to  resume  its  movement.  The  stagnation  was  stifling; 
it  was  now  to  recover  its  dynamic  force ;  its  crystals  were  to  re- 
turn in  part  to  a  fluid  state. 

(3)  J udge- Declared  Law.  This  form  was  not  the  necessary 
accompaniment  of  ordained  law  alone,  as  an  interpreter  of  obscure 
points  of  statutory  legislation.  We  have  seen  that  it  also  came 
into  being  under  a  customary  regime,  where  it  served  to  establish 
the  existence  of  the  custom  whenever  this  was  in  doubt.  It 
continued  on  through  the  various  phases  of  ordained  law  itself. 


582  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

It  was,  in  fact,  under  the  mixed  system  of  customary  and  imperial 
law,  that  the  Roman  prsetor  effected  his  important  evolution.  And 
it  subsisted  during  the  period  of  pure,  ordained  law,  when  it  might 
well  be  believed  that  the  cause  for  it  had  entirely  disappeared. 
Indeed,  the  situation  was  no  longer  the  same.  On  fixing  custom, 
there  is  a  temptation  to  revise  it,  whereas  in  the  case  of  precise 
texts  we  have  only  to  apply  and  obey  them.  And  yet  the  corrosive 
action  of  judicial  decisions  is  no  less  active  though  unforeseen, 
and  though  for  a  period  following  codification,  it  is  without  effect. 

Even  when  codified  with  care,  law  frequently  contains  ob- 
scurities which  require  interpretation;  it  is  deficient  and  must 
be  made  complete ;  it  is  even  unjust,  and  wherever  possible  this 
must  be  corrected.  The  first  two  operations  may  be  undertaken 
without  changing  the  law  in  any  respect.  This  is  obvious  with 
regard  to  interpretation.  The  intent, of  the  legislator  when  he 
created  the  law  is  sought  and  this  may  be  learned  from  the  con- 
text of  the  law  itself,  legislative  discussion,  the  preparatory  work 
of  drafting,  or  from  the  state  of  the  law  prior  to  the  enactment 
in  question.  In  France  it  suffices  often  to  read  Pothier  to  know 
the  intent  of  the  legislators  of  1804,  for  they  followed  him  in  al- 
most every  respect.  What  the  intention  of  the  legislator  would 
have  been  today  is  not  a  subject  of  inquiry,  because  it  is  unascer- 
tainable,  and  we  would  run  the  danger  of  substituting  our  own 
pleasure  for  his.  The  function  of  judicial  decisions  becomes  more 
difficult  when  we  attempt  to  fill  the  deficiencies  of  legislation.  It 
would  seem  that  in  this  the  liberty  would  be  greater  since  in  no 
case  would  the  law  be  violated.  And  yet,  to  be  correct,  we  must, 
as  in  the  former  case,  inquire  only  how  the  legislator  of  that 
period  would  have  decided.  This  is  relatively  simple,  since 
throughout  the  text  of  the  law  he  has  laid  down  general  prin- 
ciples as  guides.  And  lastly,  may  the  mistakes  of  the  legislator 
be  corrected?  The  courts  would  like  to  undertake  this.  But  it 
would  be  laying  a  sacrilegious  hand  upon  the  work  of  the  lawmaker ; 
courts  must  remain  silent. 

This  was  all  that  judge-declared  law  dared,  at  least  at  the  out- 
set ;  the  early  exposition  of  the  Civil  Code,  by  court  or  jurist, 
strictly  limited  itself  to  this. 

Within  this  circumscribed  field,  judicial  decisions  and  the  opin- 
ions of  jurists  had  only  a  supplemental  task  to  perform,  that  of 
securing  a  yet  more  absolute  crystallization  of  law.  Legislation 
in  the  strict  sense  had  not  been  able  to  accomplish  this  in  every 
detail  and  the  courts,  therefore,  had  to  choose  between  two  courses : 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  583 

leave  crystallization  unachieved  by  recognizing  no  binding  force 
in  their  decisions,  .or  carry  crystallization  to  completion.  To 
effect  the  latter  the  decisions  of  the  courts  had  to  have  authority, 
not  only  in  the  particular  instance,  but  in  all  similar  cases,  in 
so  far  as  fixing  the  rule  of  law  was  concerned.  This  result  might 
be  accomplished  by  an  affirmative  command  of  the  legislature  or 
by  a  rule  which  the  courts  themselves  might  adopt  to  be  bound 
by  their  former  opinions.  This  meant  the  reappearance  of  case- 
law,  and  where  similar  authority  was  attributed  to  the  collective 
judgment  of  jurists,  case-law  became  abstract. 

The  solutions  which  different  systems  of  law  have  adopted 
in  this  matter  are  various.  Some  leave  without  any  fresh  crys- 
tallization those  portions  of  the  law  which  have  remained  fluid. 
In  that  case  the  decisions  of  the  courts  are  a  chaos.  Others  admit 
of  the  creation  of  more  or  less  stable  judicial  rules.  Thus  in  France 
the  decision  of  a  court,  after  drifting  at  random,  even  with  respect 
to  the  concrete  case  which  calls  it  forth,  first  becomes  fijxed  with 
regard  to  that  particular  instance,  after  a  limited  debate  permitted 
between  the  various  courts  involved.  But  outside  the  case 
itself  a  decision  enjoys  no  more  authority  than  the  force  of  reason- 
ing it  contains,  and  the  Court  of  Cassation  itself  may  reverse  its 
own  decisions.  In  other  courts  the  force  of  a  decision  may  go 
farther.  The  law  rarely  so  prescribes,  but  in  practice  the  lower 
courts  almost  invariably  submit  to  the  higher  from  fear  of  seeing 
their  judgments  reversed.  Conflict  between  courts  is  less  and  less 
frequent,  and  it  may  be  said,  therefore,  that  the  power  of  crystalli- 
zation is  going  on  more  and  more,  and  that  the  area  of  doubt  and 
of  flux  is  gradually  being  reduced.  This  is  a  great  practical 
advantage.  As  to  the  views  of  jurists,  which  alone  produce 
abstract  case-law,  we  know  that  the  Roman  law  operated  in  this 
way,  clothing  them  with  the  highest  authority;  the  opinions 
of  the  jurisconsults  enjoyed  the  force  of  law. 

Had  judicial  decisions  always  been  content  with  these  two 
functions:  (1)  of  interpreting  and  completing  the  law  in  fur- 
therance of  its  original  spirit;  (2)  of  completing  it  in  the  sense 
of  achieving  its  crystallization,  it  would  not  deserve  to  be  counted 
by  us  as  an  independent  source  of  law.  It  would  be  merely 
auxiliary.  But  at  different  periods  of  history,  and  notably  in 
France  during  the  last  few  years,  it  has  assumed  a  new  role  of  very 
great  importance  which  renders  it  really  creative. 

Such  a  usurpation  is  justifiable  upon  two  different  grounds,  or 
rather  motives. 


584  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

The  first  is  altogether  subjective  and  will  not  occupy  us  long. 
And  yet,  like  everything  subjective,  it  is  perhaps  the  most  power- 
ful. Under  the  customary  regime,  law  was  not  only  capable  of 
creating  juridical  sociology,  unquestionably  a  science,  but  it  was 
itself  a  science.  Law,  indeed,  then  contained  no  contingent  factor 
but  followed  a  logical  sequence  through  time;  its  evolution  was 
regular;  written  legislation  did  not  disturb  the  curve  of  its  de- 
velopment more  than  to  cause  minute  oscilla|:ions,  after  which  the 
instinctive  direction  was  resumed.  There  was  no  positive  law 
due  to  caprice  because  the  lawmaker  himself  consciously  obeyed 
evolution.  If  he  departed  from  it,  an  unconscious  force  was 
required  to  lead  him  back,  and  this  force  could  be  no  other  than 
judge-declared  law.  It  was  fitted  to  do  so,  because  it  is  a  veiled 
or  implied  prompting.  Its  work  is  the  more  scientific  for  that 
very  reason;  indeed,  the  work  of  the  legislator  is  but  slightly 
scientific.  Here,  then,  we  may  study  juridical  evolution.  And 
yet,  if  its  one  mission  was  to  follow  the  law  slavishly,  it  could  not 
exert  its  proper  force.  It  would  be  identical  wath  legislation  itself, 
just  as  empirical  and  capricious  as  the  statute  which  it  was  con- 
tent to  apply.  In  brief,  for  law  to  be  a  science,  judicial  opinion 
must  develop  and  in  the  gaps  left  by  the  legislature,  it  must  be 
the  law ;  it  must  not  devote  itself  exclusively  to  sterile  interpre- 
tation, but  advance  the  evolution. 

The  objective  justification  is  of  weight  in  quite  a  different  way. 
It  is  not  here  a  question  of  increasing  the  scientific  value  of  law 
but  of  rendering  it  more  and  more  elastic,  equitable  and  useful. 
This  is  its  true  function.  Clothed  in  ordained  formulae  and  com- 
pletely crystallized,  law  risks  being  incapable  of  following  the  march 
of  ideas  and  interests  and  this  discord  might  arrest  all  progress. 
The  parliamentary  legislator  keeps  us  waiting  too  long  for  a  realiza- 
tion of  urgent  reform.  There  is  need  of  a  spontaneous  mechanism 
operating  more  rapidly.  Courts  being  in  constant  contact  with 
the  world  of  realities,  are  better  placed  to  see  what  is  needed. 
Again,  if  the  courts  acquire  the  necessary  legislative  authority, 
they  would  possess  in  these  realities  the  measure  and  direction 
of  the  forces  proper  for  each  application.  And  furthermore  judge- 
declared  law  is  involuntary  and  unconscious,  and  these  are  advan- 
tageous qualities.  In  this  respect  it  would  in  a  way  rejuvenate 
the  old  customary  law  without  its  disadvantages.  It  would  be 
an  enlightened  custom ;  not  that  of  the  uninstructed  people,  but 
of  learned  courts  and  even  of  the  highest  court,  for  in  a  country 
like  France  everything  eventually  reaches  the  Supreme  Court. 


Chap.  XXV.]  THE   EVOLUTION   OF  CIVIL   L.\W  585 

Rut  for  judge-declared  law  to  function  in  this  way,  for  its  equity 
to  be  salutary,  it  will  have  to  act  differently  in  the  three  roles 
which  we  have  described. 

If  it  is  a  question  of  supplying  the  deficiencies  of  the  law,  it 
will  not  inquire  what  the  lawmaker  would  have  done  forty  or  fifty 
years  ago  (a  scruple  not  difficult  to  overcome),  nor  even  what 
he  would  have  intended  under  new  and  different  circumstances, 
but  frankly  what  is  good  and  useful.  The  judge  will  no  longer 
be  bound  uselessly  by  the  dead  but  will  himself  act.  This  will 
be  a  social  gain  and  yet  the  judge  will  not  violate  existing  law  by 
so  doing,  since  this  is  silent.     A  little  courage  will  suffice. 

If  it  is  a  case  of  interpretation,  the  judge  will  need  more  than 
courage,  because  there  the  law  has  already  spoken,  and  the  problem 
is  to  understand  it.  Therefore,  it  is  to  the  time  of  the  making 
of  the  law  that  he  must  refer.  Yet  how  unfortunate!  The 
law  may  be  antiquated  or  even  harmful.  Why  not  profit  by  a 
fortunate  opportunity  to  make  new  law?  Better  that  accepted 
principles  perish,  at  least  so  long  as  the  innovation  thus  disguised 
as  interpretation  does  not  offend.  Law  whose  meaning  is  obscure 
is  as  though  it  were  non-existent.     It  falls  within  the  first  cate- 

P'inally  the  difficult  problem  is  that  of  amending  a  clear  text. 
■  Implendi  et  adjuvandi  ",  yes;  but  "  corrigendi  gratia";  here 
begins  the  sacrilege !  And  yet  law  is  made  for  man  and  not  man 
for  law.  jMoreover  an  amendment  will  not  be  effected  suddenly, 
but  slowly,  insensibly,  and  above  all  always  indirectly.  The  law 
will  be  bent  (the  expression  is  already  in  use)  when  it  prohibits  an 
act  which  has  become  admissible  and  current.  It  will  be  under- 
mined and  abolished,  at  first  in  exceptional  cases  which  will  be 
justified  through  other  provisions  of  the  same  code ;  later  in  all 
cases  and  with  somewhat  varying  results ;  and  finally  the  riddled 
text  will  fall  of  its  own  accord  without  heed  being  paid  to  it. 

The  end  will  justify  the  means,  for  it  will  invariably  be  the 
triumph  of  equity  or  utility.  Of  these  the  second  is  as  important 
as  the  first  for  it  will  be  practical  utility,  which  will  cause  the  usur- 
pation to  pass  unperceived.  Judicial  decisions  will  act  under  this 
powerful  impulsion  and  also  under  that  yet  more  insidious  force, 
habit.  It  will  merely  establish  a  sanction  for  that  which  hitherto 
has  been  done  although  outside  the  law.  We  shall  later  examine 
the  well-known  function  of  the  Roman  praetor  and  summarize 
the  accomplishments  of  French  judge-declared  law.  We  shall 
then  see  how  everything  extra-legislative  which  it  contains  has 


586  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

been  in  the  interest  of  equity.  The  same  has  been  true  in  Eng- 
land under  the  influence  of  the  court  of  Chancery. 

All  legal  reform  began  in  this  way.  It  often  never  passed  beycnd 
a  tentative  stage,  because  to  declare  the  absolute  contrary  of  exist- 
ing law  would  have  been  deemed  too  radical.  But  when  that 
stage  is  reached,  such  a  law  is  evidently  ready  to  be  repudiated. 
This  the  legislator  will  do.  He  confirms  and  perfects  the  work 
of  the  courts  There  is  hardly  one  legislative  reform  which  has 
not  been  anticipated  in  this  way. 

This  in  particular  was  Justinian's  method.  Praetorian  reform, 
legal  precedent  and  the  added  humanitarian  effect  of  Christianity 
had  long  smoothed  the  way,  so  that  in  his  compilation  he  was  able 
to  transform  the  laws  radically. 

Today  judicial  decisions  dominate  statutory  law;  the  latter 
furnishes  here  and  there  mere  transient  starting-points.  To 
settle  a  line  of  conduct  or  reach  a  decision,  it  is  useless  to  open 
the  Code.  It  is  far  more  profitable  in  France  to  consult  the 
digests  of  Sirey  or  Dalloz,  for  these  reply  to  every  question  and 
the  Code  almost  to  none.  Indeed,  even  when  it  does  give  a  clear 
solution,  more  often  than  not  it  is  wrong,  because  interpretation 
has  long  since  modified  its  meaning.  • 

Such  is  the  function  of  judge-declared  law  at  any  stage  in  legal 
evolution.^ 


Again  custom  has  been  pushed  to  the  top,  declared,  it  is  true,  by 
magistrates  and  therefore  now  aristocratic.  It  is  an  application 
of  that  law,  already  explained,  which  directs  the  movement  cf 
historical  evolution  in  a  spiral.  We  end  or  seem  to  end  where  we 
began,  that  is,  with  customary  law.  But  the  custom  represented 
by  case-law  is  not  identical  with  the  earliest  form  of  custom.  It 
is  now  conscious,  deliberate,  and  even  intended,  since  it  is  voiced 
by  courts  or  the  public  conscience.  Its  character  has  been  well 
described  by  Gabriel  Tarde.  "  Judge-declared  law,"  he  said, 
"  when  grafted  upon  statutory  law,  is  the  addition  to  legislative 
law  of  a  sort  of  new  customary  law,  which  is  a  substitute  for  the 
custom  of  antiquity.  The  custom  of  judges  has  taken  the  place 
of  the  custom  of  the  judged." 

Sometimes  neo-customary  judge-declared  law  strives  to  become 
freshly  crystallized,  as  early  custom  was  crystallized  in  ordained 

1  [Two  other  sources  of  law  —  doctrine  and  practice  —  are  treated  in 
the  omitted  text  which  in  the  original  work  follows.] 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  587 

law.  This  does  not  take  place  everywhere  directly,  but  it  is  a 
commoner  occurrence  than  is  generally  believed,  because  often 
it  is  indirect  and  unperceived. 

The  first  mode  of  re-crystallization  is  the  adoption  of  new  or- 
dained law,  that  is,  parliamentary  legislation  in  the  strict  sense. 
When  a  line  of  decisions  introducing  reforms  has  been  well  es- 
tablished with  regard  to  certain  isolated  points,  from  which  it  is 
possible  to  develop  a  general  theory,  it  invites  the  lawmaker  to 
act.  Guided  by  these  fundamental  points,  the  legislature  passes 
a  more  complete  law  in  the  same  spirit.  Doctrine  contributes, 
supplying  needed  suggestion.  It  was  in  this  way  that  the  law  of 
insurance  in  France,  after  developing  in  the  courts,  became  ripe 
for  legislation,  and  finally  an  insurance  act  was  submitted  to  the 
legislature.  The  decisions  of  the  courts  have  also  resulted  in 
calling  forth  the  opinions  of  the  Council  of  State.  The  judicial 
decisions  prior  to  the 'passage  of  the  law  are  then  rendered  use- 
less, being  merged  in  it.     However,  they  have  served  to  create  it. 

Another  more  direct  and  interesting  mode,  peculiar  only  at 
certain  periods  and  to  certain  countries  (it  has  already  been  de- 
scribed) is  that  of  judgment  upon  precedent  or  "  case-law  ",  as 
it  has  obtained  in  England,  and  as  it  existed  at  an  early  period 
of  French  history,  in  the  form  of  "  general  orders  "  of  the  pro- 
vincial parliaments,  above  all  of  the  Parliament  of  Paris.  The 
judge  was  frankly  a  lawmaker. 

When  a  new  law  has  been  enacted  judicial  decisions  have  had 
no  effect  upon  the  new  legislation ;  at  least  not  as  a  corrective  of 
the  old  law,  for  defects  in  the  new  legislation  will  presently  be 
revealed  and  judicial  opinion  will  resume  its  task  of  preparing 
the  ground  for  a  subsequent  improvement. 

This  movement  then  closely  conforms  to  the  spiral  progress 
of  social  phenomena.  We  start  with  custom ;  this  is  committed 
to  writing;  then  it  becomes  solidified  as  a  whole  in  a  legislative 
enactment  or  ordained  law;  this  is  in  turn  dissolved  under  the 
influence  of  the  decision  of  the  courts  which  attack  it  from  every 
quarter;  soon  a  new  statute  completes  the  work  of  the  courts, 
whose  function  for  the  moment  ends,  to  resume  later  when  ex- 
perience has  given  cause  for  criticism.  It  will  then  again  dis- 
solve the  recrystallized  law. 


§  4.    From   Oral  to   Written  and  to  Codified  Law.     Redaction 
and   codification   are   a   commencement  or  complement  of  the 


588  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

crystallization  of  law.  They  appear  at  each  of  the  stages  which  we 
have  just  described.  We  shall  delay  but  a  moment  over  these 
phenomena,  inasmuch  as  they  explain  themselves. 

In  a  fluid  state  law  may  be  written  or  codified  just  as  well  as 
in  a  crystallized  state,  but  codification  serves  to  crystallize  it  to  a 
certain  degree. 

The  advantage  of  written  law  is  that,  where  customary,  it  no 
longer  needs  to  be  proved  in  each  instance ;  the  advantage  of  codi- 
fication is  that  it  brings  the  various  branches  of  the  law  into 
instant  juxtaposition  and  classifies  them  into  a  logical  sequence. 
A  code  is  synoptic ;  it  establishes  an  interdependence  throughout 
the  whole  body  of  law. 

The  evolution  of  which  we  are  now  speaking  presents  three 
phases :  law,  at  first  purely  oral,  was  reduced  to  writing  but  not 
officially;  later  it  was  officially  compiled,  though  codification  re- 
mained incomplete ;  finally  it  was  put  into  the  form  of  a  complete 
code. 

Let  us  examine  this  evolution  in  detail. 

(1)  The  Customary  and  Fluid  Stage.  Customary  law  was  at 
first  purely  oral ;  then  it  be;came  successively  written  and  codified, 
passing  through  several  intermediary  states.  This  is  observable 
in  the  history  of  French  customary  law. 

Oral  law  was  transmitted  by  memory  or  by  form  books  and  even 
today  by  legal  maxims.  When  it  was  necessary  to  establish  legally 
the  existence  of  a  custom,  early  French  law  provided  for  proof 
by  '^  turbe  "  (jury).  Here  proof  of  the  rule  depended  upon  the 
testimony  of  witnesses  who  had  to  be  unanimous. 

Later  oral  law,  without  ceasing  to  be  such  in  so  far  as  an  official 
text  was  concerned,  was  unofficially  reduced  to  writing.  In  this 
way  a  part  of  the  French  customs  was  collected  by  different 
jurists  into  the  compilations  which  from  the  1200  s  to  the  1500  s 
formed  the  "  custumals."  There  were  the  "  Conseil  a  un  Ami  ", 
the  "  Livre  de  Justice  et  de  Plet ",  the  ''  Etablissements  de  Saint 
Louis  ",  the  "  Coutumes  de  Beauvoisis  ",  the  "  Coutumier  de 
Picardie  ",  the  "  Tres  Ancien  Coutumier  de  Normandie ",  the 
"  Grand  Coutumier  de  Normandie  ",  the  *'  Somme  Rurale  ",  the 
"  Tres  Ancien  Coutumier  de  Bretagne  '\  the  '^  Grand  Coutumier 
de  France. ''  None  of  these  monuments  had  legislative  force  of 
itself ;  but  through  them  the  oral  law  became  written  and  in  part 
codified. 

We  have  said  that  judicial  decisions  operated  in  the  same  way 
upon  customs  as  they  now  do  upon  the  written  law.    They  declared 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  589 

the  custom  and  often  modified  it.  At  first  the  judgment  of  the 
court  was  purely  oral ;  then  it  was  taken  down  in  writing  in  each 
litigation;  later  it  was  published  in  the  collection  known  as 
"  Olim."     In  this  last  phase  it  was  an  unofficial  law. 

Finally  oral  law  became  written  and  was  codified  little  by  little 
in  the  official  compilations  of  customs  ordered  by  the  king.  This 
redaction  did  not  in  general  alter  the  custom  but  merely  rendered 
it  official,  dispensing  with  proof.  The  outcome,  however,  was  to 
solidify  and  convert  them,  not  into  ordained  but  into  fixed  law. 
They  could  no  longer  be  modified  except  by  proving  that  a  new 
custom  had  arisen;  a  usage  had  to  be  certain  and  immemorial, 
or  a  written  custom  had  to  be  shown  to  have  fallen  into  disuse. 
Furthermore  it  merged  into  one  general  custom  those  which  were 
excessively  local.  But  the  customs,  thus  compiled,  were  very 
deficient.  In  the  civil  law  they  covered  only  the  rights  of  persons, 
the  feudal  system,  marriage,  gifts,  inheritance,  and  wills.  It  was 
a  written  law  rather  than  a  codified  law.  True  codification 
belonged  to  another  period. 

To  the  compilation  of  the  customs  succeeded  a  period  of  revision. 
Almost  all  passed  through  a  second  publication,  that  of  the  revised 
customs. 

From  that  date,  as  has  been  shown,  ordained  law  made  its 
appearance.  It  took  the  form  of  capitularies  and  royal  ordinances. 
The  law  was  written,  but  in  no  sense  codified,  as  we  shall  presently 
point  out. 

English  law  has  remained  customary  in  part.  No  doubt  in 
the  course  of  centuries  it  has  changed  from  oral  to  written ;  but 
the  redaction  w^as  merely  unofficial.  No  official  compilation  of 
English  custom,  even  partial,  similar  to  that  of  the  early  French 
law  has  taken  place.  Here,  too,  ordained  law  made  a  beginning. 
Numerous  statutes  were  enacted  which  formed  a  nucleus.  But 
while  they  were  necessarily  written,  they  were  not  codified.  The 
same  has  been  true  in  the  United  States. 

Codification  has,  indeed,  been  regarded  as  antipathetic  to  all 
essentially  customary  systems  of  law.  Such  systems  delight  in 
the  want  of  precision  which  characterizes  them.  From  the  prac- 
tical point  of  view  this  is  a  mistake,  for  their  legislation  is  full  of 
doubts  exposing  them  to  a  multitude  of  errors;  in  theory  and 
purpose  they  are  right,  for  the  absence  of  codification  prevents 
the  exclusive  domination  of  ordained  law  and  alone  insures  the 
continuance  of  customary  law.  It  is  an  escape  from  the  arbitrary 
sovereign  will ;  it  impresses  a  scientific  character  upon  law. 


590  PROCESS   OF   LEGAL   EVOLUTION  [Part   III. 

(2)  Tlie  Ordained  and  Crystallized  Stage.  Here  law  is  necessarily 
written.  It  is  a  first  and  inferior  stage  of  codification,  which  often 
does  not  progress  beyond  the  merely  written  phase. 

This  was  the  case  in  France,  under  the  capitularies  and  royal 
ordinances.  These  regulated  the  most  important  subjects  of  the 
law  and  came  near  to  encompassing  the  whole  field;  but  they 
never  constituted  a  synthesis  of  legislation.  We  may  cite  those 
of  Blois  upon  the  celebration  of  marriage  and  the  registers  of  civil 
status;  those  of  Moulins  upon  oral  proof;  those  of  1667  upon 
civil  procedure,  of  1673  upon  commerce  by  land,  of  1681  upon 
commerce  by  sea,  and  especially  those  of  1731  upon  gifts7  of  1735 
upon  wills,  and  of  1737  upon  forgery. 

But  this  very  considerable  mass  of  written  law  inspired  a  desire 
to  pass  to  a  higher  stage,  that  of  ordained  codified  law.  This 
aspiration  was  increased  by  the  need  of  bringing  uniformity  to 
the  local  and  divergent  customs  of  the  realm.  Dumoulin  had 
presented  a  plan;  Lamoignon  followed  him  under  Louis  XVI 
and  drafted  a  code  which  was  published  under  his  name.  In  this 
work  of  unification  two  methods  were  adopted.  In  part  that  of 
conciliation  was  followed :  the  best  was  chosen  from  the  various 
customs.  In  part  recognition  was  given  to  the  relative  importance 
of  a  custom  as  determined  by  the  numbers  of  persons  governed 
by  it,  the  Custom  of  Paris  being  preferred  in  general.  Meanwhile 
monographs  by  various  jurists  had  appeared :  Bourjon's  "  The 
Common  Law  of  France  "  ^  presented  an  excellent  summary  in 
the  1700  s  of  these  various  ideas. 

Not  till  after  the  French  Revolution  did  the  idea  of  codification 
take  definite  shape.  It  was  confused,  too,  with  the  idea  of  terri- 
torial uniformity.  The  first  attempt  was  the  Civil  Code  of  the 
Convention ;  the  final  product  was  the  Civil  Code  of  1804  which 
embraces  the  entire  body  of  the  civil  law.  Codification  was  made 
complete,  and  that  is  the  undisputed  advantage  which  still  with- 
stands the  innumerable  criticisms  of  which  the  Civil  Code  has 
been  made  the  object. 

In  the  history  of  Roman  law  the  codification  of  the  imperial 
constitutions  took  place  under  Justinian,  but  it  was  merged  with 
praetorian  law  and  the  writings  of  the  jurisconsults,  so  that  it  formed 
one  whole  in  the  Digest. 

In  England  statutory  and  customary  law  have  so  far  resisted 
codification.  Statutes  accumulate  without  being  repealed  or 
merged.  Great  inconvenience  has  resulted  in  practice  but  this 
1  "Du  Droit  commun  de  la  France." 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  591 

may  be  blamed  upon  ethnic  traits.  The  same  is  true  in  the 
United  States.  There,  however,  centers  of  codification  appear 
here  and  there,  as  in  New  York  where  criminal  procedure  has  been 
codified,  and  in  Louisiana  where  codification  has  reached  the 
same  completeness  as  in  the  French  Civil  Code. 

Codification  of  ordained  law  went  on  principally  in  other  coun- 
tries :  as  in  Germany,  where  there  was  a  well -developed  Prussian 
Code,  in  Austria,  and  in  the  various  Swiss  Cantons.  With  the 
exception  of  England  and  the  United  States,  all  European  and 
American  countries  now  possess  their  civil  code. 

Eminent  jurists,  led  by  Savigny,  were  not  wanting  who  opposed 
codification  on  the  ground  that  it  halted,  for  the  time  at  least, 
the  progress  of  dynamic  law.  For  a  long  while  their  opinion 
triumphed.  It  is  now  rejected,  especially  since  the  strict  law 
has  come  to  receive  correction  through  the  more  elastic  judge- 
declared  law. 

The  idea  of  uniform  law  is  very  closely  related  to  codification, 
though  the  two  should  be  kept  distinct.  We  shall  consider  the 
former  presently. 

The  codification  of  the  French  Civil  Code  was  once  complete, 
but  is  no  longer  so.  New  social  requirements  have  given  rise  to 
new  laws  which  have  not  found  a  place  in  the  Code.  As  to  such 
legislation  two  methods  have  been  pursued.  Sometimes  the  new 
law  has  been  interpolated  into  the  old  Code.  This  we  believe 
to  be  the  best  mode.  In  creating  new  law,  the  legislator  has  fre- 
quently repealed  the  old,  and  has  substituted  new  Articles  for 
those  that  have  been  suppressed.  But  often  he  has  been  content 
to  legislate  independently  of  the  Code.  This  makes  conflict 
likely,  and  in  all  cases  leads  to  contrariety  in  the  subject  as  a  whole. 
Codification,  therefore,  no  longer  comprehends  the  whole  of  the 
law. 

Alongside  of  codified  law,  is  a  newer  body  of  uncodified  statutes. 
Sooner  or  later  these  tend  to  unite  with  the  codified  portion  and 
to  form  a  more  compact  and  complete  body.  Codification  has 
then  reached  its  culminating  point.  Many  regard  this  phase 
as  excessive,  and  prefer  that  the  original  code  remain  intact  and 
that,  as  need  arise,  new  laws  be  passed  which,  however,  should 
remain  independent.  This  should  be  the  plan  of  revision  of  a 
historical  instrument,  which,  if  it  is  to  be  respected,  must  be  kept 
intact.  Thus  have  argued  those  who  oppose  the  revision  of  the 
body  of  the  French  Civil  Code. 

(3)   The  NeO'Customary  or  Judicial  Stage.    In  this  phase  law 


592  PROCESS   OF    LEGAL   EVOJ.UTION  [Part   III. 

is  fluid  as  in  the  first  period.  Is  it  written,  and  if  so,  is  it 
codified  ? 

At  first  it  was  unwritten.  Judgments  were  handed  down  with- 
out public  knowledge  of  them.  They  were  not  written  in  such  a 
way  as  to  be  accessible  to  the  public ;  they  became  so  only  when 
published  in  periodical  reports.  However  they  were  still  not 
codified  and  had  to  be  sought  under  their  date,  a  process  as  tedious 
as  the  search  for  customs. 

Presently  order  emerged  from  this  chaos.  New  collections 
of  the  same  decisions  appeared  with  a  critical  text.  They  were 
arranged  not  in  chronological  order  but  according  to  subject  matter, 
in  the  systematic  form  of  a  dictionary.  Cases  were  then  as  easily 
found  as  Articles  of  the  Code.  In  France  this  work  has  been  ac- 
complished in  the  collections  known  as  ''Dalloz",  "Sirey",  and 
the  "  Pandectes  Fran9aises."  Judicial  legislation  has  thus  been 
codified.     Justinian's  great  labor  in  the  Pandects  was  analogous. 

§  5.  From  a  Law  of  Nature  to  a  Positive  Law,  Then  to  an  Equi- 
table Law.  Strict  and  equitable  law  have  everywhere  been  evidently 
engaged  in  a  parallel  race.  Roman  law  carefully  distinguished 
actions  ''  stricti  juris  "  from  those  "  bonae  fidei ",  and  quiritary 
from  bonitary  ownership ;  English  law  distinguishes  common  law 
from  equity,  the  legal  from  the  equitable  title.  There  is  some- 
thing fundamental  in  this. 

Natural  law,  too,  has  been  distinguished  from  positive  civil 
law,  and  although  the  term  natural  law  is  not  easy  to  define,  we 
are  nevertheless  very  sensible  of  a  meaning  and  also  of  the  antith- 
esis so  frequent  and  so  expressive  between  natural  and  positive. 

The  two  categories  should  be  united,  for  they  really  form  but 
one,  and,  when  considered  together,  they  will  be  better  understood. 

Natural  law  is  the  rule  regulating  human  relationships  prior 
to  the  appearance  of  positive  or  social  law.  The  latter  is  a  some- 
what artificial  law,  rational  and  conscious  in  its  highest  form,  and 
essentially  societary,  that  is,  founded  upon  social  interest.  Natural 
law  is  to  positive  law  what  a  reflex  action  is  to  a  conscious  action. 

It  is  not  true,  as  Rousseau  declared,  that  natural  law  is  just, 
while  social  law  is  unjust.  Natural  law  may  be  very  unjust  and 
positive  or  social  law  very  just.  Natural  law  permitted  and  even 
commanded  private  vengeance,  and  was  unjust  when,  as  often 
happened,  vengeance  was  excessive.  It  was  social  law  which 
rendered  it  just  by  interfering  to  limit  it  to  a  strict  retaliation. 
It  was  unjust  also  when  it  held  an  entire  family  jointly  responsible 
for  the  crime  of  a  single  member.     Without  aiming  to  be  so,  pos- 


CiL\p.   XXV.J  THE   EVOLUTIOX   OF  CIVIL   LAW  593 

itive  law  was  in  turn  unjust,  in  admitting  the  doctrine  of  the  lim- 
itation of  actions,  to  the  advantage  of  one  who  appropriated 
another's  property ;  and  in  prohibiting  the  investigation  of  pater- 
nity. It  was  just  in  requiring  the  publicity  of  acts  and  estab- 
lishing various  guaranties. 

The  criterion  must  be  sought  elsewhere.  It  is  that  natural 
law  is  individualistic  while  positive  law  is  social. 

But  in  the  process  of  socialization,  positive  law  could  not  pre- 
serve the  nuances  which  characterize  natural  law.  It  had  to 
permit  or  prohibit  *'  en  bloc  " ;  it  was  obliged  to  legislate  accord- 
ing to  the  maxim  **  plerumque  fit  ",  sacrificing  the  individual  to 
society  where  necessary,  considering  always  and  above  all  the 
public  good,  and  establishing  stable  forms. 

This  very  valuable  work  may  be  beneficial  as  a  general  rule 
and  harmful  in  a  particular  instance;  it  may  be  helpful  to  good 
order  and  a  blow  to  progress,  good  for  the  people  as  a  whole  and 
ill  for  a  given  individual.  Indeed  so  injurious  may  it  be,  that  we 
regret  the  natural  law  which  preceded  it.  In  that  case  we  strive 
to  preserve  the  advantages  of  positive  law,  while  correcting  its 
defects,  and  to  reincorporate  in  part  the  natural  law  which  had 
been  displaced,  purged,  however,  of  its  excessive  individualism. 
For  example,  investigation  of  paternity  was  admitted  by  natural 
law.  It  was  not  an  equitable  motive  alone  which  finally  introduced 
the  principle,  but  conscience  itself,  which  is  individualism  pure 
and  simple.  The  legislator,  however,  was  influenced  by  the 
numerous  dangers  of  proof  of  such  relationship.  He,  therefore, 
in  the  interest  of  society,  cut  short  the  possibility  by  an  absolute 
prohibition  which  became  the  rule  of  positive  law.  Then,  in  turn, 
the  prohibition  seemed  unjust.  Particular  cases  arose  where  the 
strict  rule  had  to  yield.  But  it  was  then  not  natural  law  reappear- 
ing but  equity,  which  is  a  higher  manifestation  of  nature.  In 
the  French  Civil  Code  exceptions  were  admitted  to  Article  340.^ 
Equity  is  a  higher  form  of  natural  law,  which  has  refound  a  place 
throughout  the  Code.     Such  is  historical  succession. 

Natural  law  existed  everywhere  first  of  all.  But  there  were 
instances  where  it  enjoyed  short  duration.,  especially  in  complex 
societies,  where  as  a  defense  it  soon  became  necessary  to  pass  to 
the  phase  of  positive  law.     So  complete  was  the  substitution  that 

'  [Art.  340:  "Investigation  of  paternity  is  prohibited.  In  cases  of 
seduction  when  the  date  of  the  seduction  is  that  of  the  period  of  con- 
ception, the  seducer  may,  upon  demand  of  the  parties  in  interest,  be 
declared  the  father  of  the  child."  —  Translator.} 


594  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

natural  law  was  almost  smothered.  Under  the  brutal  compres- 
sion that  took  place,  its  life  was  almost  crushed  out.  In  the 
civil  law  of  Rome  the  "  patria  potestas  "  came  near  to  destroying 
kinship  by  blood;  the  emancipated  son  no  longer  figured  as  a 
member  of  the  family  while  the  adopted  son  was  in  all  respects 
absorbed.  And  yet  adoption  was  an  artificial  institution.  In  a 
large  measure  it  took  the  place  of  the  natural  relation.  In  the 
Middle  Ages  we  may  regard  the  customs  as  natural  law.  They 
were  dominated  by  feudal  law  which  was  artificial  and  social. 
Everywhere  positive  law  successfully  established  itself. 

Then  commenced  the  reaction  in  favor  of  natural  law  and 
equity.  It  was  long  and  bitter.  A  steady  parallelism  grew  up 
between  the  two  forms,  positive  and  equitable  law,  which  almost 
always  ended  in  the  positive  law  being  drawn  over  to  equitable 
principles, 

Roman  law  offers  the  most  notable  example.  The  praetor 
created  the  body  of  praetorian  law  alongside  of  the  "  jus  civile  " ; 
he  introduced  the  ''  dominium  utile  "  alongside  the  "  dominium 
directum  " ;  the  consensual  alongside  the  literal  and  verbal  con- 
tracts ;  the  "  bonorum  possessio  "  in  the  law  of  inheritance ;  the 
*'  actio  utilis  "  beside  the  "  actio  directa  "  ;  the  trust  entail  outside 
the  strict  law  of  wills. 

Anglo-American  law  has  followed  the  same  course;  a  right  in 
law  is  opposed  to  a  right  in  equity  :  hence  such  terms  as  equitable 
title  and  equitable  mortgage. 

The  final  history  of  praetorian  law  is  almost  always  its  incor- 
poration into  legislative  law  properly  speaking.  Throughout 
his  work  Justinian  placed  equitable  principles  above  positive  law. 

In  a  less  patent  manner  the  role  now  played  in  France  by  the 
equitable  doctrines  of  the  courts  is  of  the  same  nature.  It  aims 
to  make  equitable  principles  prevail  over  positive  law.  We  shall 
presently  find  numerous  examples  where  we  may  note  the  effects 
of  this  throughout  the  law. 

We  may  mention  at  once  those  provisions  of  positive  law  still 
contained  in  the  French  Civil  Code  which  have  compelled  the 
introduction  of  equitable  principles.  In  addition  to  the  early 
provisions  relative  to  civil  death  and  the  incapacity  of  foreigners, 
both  now  abolished,  there  are  the  absolute  prohibition  against 
the  investigation  of  paternity;  excessive  power  of  the  husband 
over  the  wife ;  deficient  regulation  of  the  authority  of  the  father ; 
denial  of  legal  status  to  the  adulterine  or  incestuous  child ;  unlim- 
ited obligation  upon  the  heir  to  pay  the  debts  of  the  decedent; 


Chap.   XXV .J  THE   EVOLUTION   OF  CIVIL   LAW  595 

excessive  formality  of  wills  and  gifts ;  prohibition  imposed  upon  the 
father  from  distributing  his  property  arbitrarily;  artificial  rules 
regulating  joint  liability,  and  joint  ownership ;  excessively  numer- 
ous prohibitions  relating  to  evidence;  distinction  between  mov- 
ables and  immovables  in  fhe  law  relating  to  marriage ;  absence  of 
equality  in  the  rules  governing  the  hire  of  services;  excessive 
liability  for  torts  and  quasi-torts ;  disastrous  effect  of  the  wife's 
lien  upon  her  husband's  property  to  secure  the  restoration  of  her 
marriage  portion ;  various  periods  of  limitation  of  actions.  x\ll 
these  matters  belong  to  the  strict  rules,  the  excessively  strict 
rules  of  positive  law. 

The  chronological  order  of  the  evolution  is  uniform  :  1.  natural 
law ;  2.  positive  law^ ;  3.  equitable  law.  It  is  worth  noting  the 
coincidence  of  this  development  with  the  different  phases  of 
customary  law :  1.  customary  law ;  2.  prescribed  law ;  3.  neo- 
customary  or  judge-made  law.  And  along  with  these :  1.  oral 
law ;  2.  written  law ;  3.  codified  law.  Customary  law  is,  in  effect, 
almost  always  natural  law ;  ordained  law  is  almost  always  positive ; 
and  judge-made  law  is  almost  always  equitable. 

Here  we  again  find  the  spiral  curve  of  evolution.  Equitable 
principles  are  unquestionably  a  sort  of  return  to  natural  law, 
refined,  generalized  and  deliberate. 

§  6.  From  Local  to  General  Law.  Customs  were  at  first  binding 
upon  a  very  small  number  of  persons.  We  may  see  instances  of 
this  stage  today  in  the  local  usages  which  in  many  matters  still 
preserve  the  force  of  law.  They  often  extend  over  tiny  regions 
to  which  reference  must  be  made  in  the  legislative  compilations. 

The  customs  of  early  French  law  depict  a  similar  situation.  They 
did  not  always  extend  over  vast  provinces  such  as  Brittany  or 
Normandy.  Within  these  larger  areas  were  at  first  yet  other 
customs  or  usages  more  local  still  and  in  matters  of  detail  these 
were  even  further  subdivided. 

The  jurisdiction  of  the  royal  ordinances  was  broader,  applying 
to  the  country  as  a  whole. 

Of  particular  interest  here  is  the  fact  that  the  evolution  of  law 
has  always  territorially  proceeded  in  just  this  manner.  Embrac- 
ing originally  but  a  small  area,  law  continued  to  expand,  that  is 
to  say,  to  become  more  uniform.     Let  us  see  how  this  took  place. 

First  as  to  custom.  Those  of  the  cities  or  of  the  residences  of 
the  local  sovereigns  easily  attracted  to  them  other  customs,  since 
they  seemed  superior.  The  domination  of  one  part  of  the  land  by 
another  had  the  same  effect;    law  was  imposed.     But  this  was 


596  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

not  the  most  frequent  process.  It  was  at  the  time  of  the  official 
compilations  that  the  excessive  variances  in  customs  were  elim- 
inated ;  a  real  fusion  took  place,  by  giving  predominance  to  the 
customs  of  the  most  important  city  or  region. 

When  uniformity  was  being  effected  among  various  provinces, 
as  by  the  adoption  of  the  Civil  Code  in  France,  the  same  method 
was  again  employed  with  respect  to  the  part  of  the  law  still  re- 
maining customary.  Uniformity  had  already  been  realized  in 
those  parts  covered  by  the  royal  ordinances.  The  greatest  au- 
thority was  awarded  to  the  ''  Custom  of  Paris  ",  though  the  best 
was  taken  from  other  custumals. 

The  medium  of  uniformity  was  often  a  dead  law  which  con- 
tinued to  enjoy  great  authority.  At  first  it  was  superimposed; 
later  it  filtered  down  into  the  conflicting  systems.  This  was  the 
history  of  Roman  law  in  France  after  its  reintroduction  and  in 
Germany  after  its  reception.  Everywhere  its  general  principles 
received  acceptance  and  local  customs  were  subordinated  to  it. 
The  canon  law,  too,  acted  as  an  agent  while  the  theoretic  works 
upon  custom  contributed  largely  toward  uniformity. 

Finally,  the  most  powerful  of  the  ferments  was  political.  Forces 
were  working  towards  a  homogeneous  country  and  no  country  is 
really  so  until  it  possesses  a  uniform  law.  Therefore,  when  a  State 
won  political  unity,  it  consolidated  in  this  way  its  new  individu- 
ality, which  it  might  not  otherwise  have  secured  until  much  later. 
We  find  examples  of  this  in  France  after  the  Wars  of  the  Revolu- 
tion, in  Italy  after  her  independence,  and  in  Germany  after  1870. 

Such  are  the  facts ;  let  us  now  look  at  the  process. 

Uniformity  began  within  a  province ;  it  then  spread  to  different 
provinces.  However,  a  pause  occurred  in  the  process.  Finally 
it  was  achieved  between  confederate  States.  In  the  confederation, 
each  State  long  preserved  its  special  legislation  and  even  its  body 
of  civil  law.  Then  a  distinction  was  drawn  :  public  and  adminis- 
trative law  remained  as  they  were,  while  civil  and  criminal  law 
and  those  subjects  which  have  come  to  form  the  great  codes,  were 
made  uniform.  At  least  this  was  true  of  many  such  laws,  for  some 
preserved  their  absolute  autonomy.  Evolution,  however,  was  in 
this  direction.  The  United  States  has  preserved  a  different  body 
of  law  in  each  State ;  Germany  has  very  lately  adopted  a  uniform 
Civil  Code  for  all  its  States  ;  Switzerland  is  about  to  do  the  same.^ 
England  and  Scotland  have  different  civil  laws  upon  many  points. 

1  [The  Swiss  Civil  Code,  adopted  Dec.  10,  1907,  was  put  into  force 
January  1,  1912.  —  Translator.] 


(  iiAP.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  597 

The  struggle  has  always  been  keen  between  those  who  favored 
and  those  who  opposed  uniformity.  Louis  XI  was  perhaps  the  first 
to  conceive  of  applying  this  great  idea  to  the  laws  of  France.  Later, 
when  the  customs  were  officially  compiled,  Dumoulin  publicly  ad- 
vocated it,  as  did  Michel  de  I'Hospital.  But  the  Parliaments  re- 
sisted the  undertaking  just  as  they  opposed  new  ordinances. 

In  frequent  instances  today,  certain  French  territories  are  gov- 
erned by  laws  different  from  those  of  the  country  at  large.  Colo- 
nial possessions  are  in  this  category;  special  legislation  applies 
to  them ;  only  as  they  are  assimilated  to  the  home  country,  is 
general  French  law  extended  to  them. 

The  movement  tov\^ards  uniformity  may  cross  the  boundaries 
of  a  State.  There  are  numerous  examples  of  this,  and  the  process 
is  multiple.  Sometimes  uniformity  is  brought  about  through 
conquest,  and  it  then  often  persists  after  independence  has  been 
regained ;  sometimes  it  is  the  result  of  imitation  between  nations. 
So  Belgium,  Holland,  Luxembourg,  the  Canton  of  Geneva,  part 
of  Italy,  Poland,  and  the  Duchy  of  Baden  received  the  French 
Civil  Code  through  conquest  and  retained  it  afterward;  so  also 
Sweden  and  Austria  adopted  the  commercial  code  of  Germany 
through  imitation. 

The  movement  has  been  progressive.  Uniformity  has  tri- 
umphantly absorbed  in  successive  stages :  1 .  a  whole  province ; 
2.  a  whole  State;  3.  a  whole  confederation.  Finally  it  has 
spread  beyond  territorial  boundaries  under  its  banner. 

Will  this  movement  go  yet  farther  so  as  to  embrace  all  nations  ? 
It  will  meet  with  energetic  resistance,  for  each  nation  will  believe 
that  to  resist  will  be  to  defend  its  autonomy.  We  believe,  never- 
theless, that  uniformity  will  be  realized,  because  it  is  the  necessary 
goal  towards  which  evolution  aspires. 

The  present  is  not.  the  first  time  that  such  a  colossal  effort 
gathered  itself.  Long  ago  Roman  law  accomplished  it  by  her 
conquest  of  all  the  peoples  of  the  then  known  world.  It  made 
a  second  efl'ort  indirectly  through  its  incorporation  in  the  canon 
law  which  in  turn  undertook  the  same  conquest ;  it  strove  again 
directly  in  Germany,  France,  and  even  in  the  customary  regions, 
where  it  became  a  subsidiary  law  (in  reality,  in  Germany,  the 
principal  law). 

In  conclusion,  we  would  call  attention  to  the  parallel  between 
this  evolution  and  those  already  described.  Purely  customary 
law,  at  least  for  a  long  period,  was  accompanied  by  wide  local 
diversity ;  ordained  law  has  extended  over  vast  territories. 


598  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

§  7.  From  Simple  to  Complex  Law.  Law  in  its  absolutely 
original  state,  the  law  of  savage  man,  was  simple.  Contracts 
did  not  rise  above  the  level  of  mere  exchanges  and  were  executed 
as  a  barter.  No  contract  could  be  entered  into  between  members 
of  different  clans ;  ownership  passed  only  by  delivery ;  matrimony 
arose  from  cohabitation;  the  right  of  inheritance  did  not  exist, 
since  property  was  as  yet  collective.  But  so  soon  as  society  evolved 
into  different  forms,  there  succeeded  to  simplicity  a  complexity 
which  went  on  expanding  and  dividing  until  today  the  law  is  an 
inextricable  maze. 

The  first  stage  was  of  short  duration,  though  it  has  been  encoun- 
tered again  at  each  revival  of  law.  The  judgment  of  Solomon 
might  well  have  been  rendered  by  St,  Louis  under  the  oak  of 
Vincennes. 

But  the  period  of  complex  law  has  been  of  very  long  duration. 
Customs  were  at  first  relatively  simple.  When  viewed  from  the 
national  standpoint  they  seemed  multifarious,  but  when  observed 
within  a  restricted  neighborhood,  they  could  soon  be  known.  At 
least,  there  were  few  obscurities  of  text  and  exceptions  were  rare. 
When  officially  compiled,  they  at  once  presented  problems  of  in- 
terpretation. But  they  were  brief  and  the  road  was  long  to  the 
complex  modern  code  of  science. 

Excessive  complexity  and  also  obscurity  began  with  the  science 
of  law,  properly  speaking,  and  legal  exposition.  Interpretation 
enjoyed  a  free  hand  and  each  jurist  exhibited  his  virtuosity  to 
admiring  hearers.  The  clearest  text  of  law  did  not  resist  the 
attack ;  it  was  tortured  until  it  produced  several  meanings.  What 
then  of  laws  that  were  obscure?  The  French  Civil  Code  is  of 
modest  proportions  if  we  exclude  from  it  all  those  Articles  which 
are  pure  platitudes.  And  yet  each  of  its  short  Articles  has  been 
eaten  into  by  jurists  as  the  leaves  of  the  trees  are  stripped  by  pests. 
The  exegetic  plague  increased  as  ordained  law  developed.  This  has 
been  true  of  all  countries  at  all  times.  Not  so  long  ago  the  teaching 
of  law  consisted  mainly  in  exciting  admiration  of  extravagant  dia- 
lectics ;  it  came  to  be  impossible  to  choose  from  amongst  the  vari  - 
ous  systems  of  interpretation  (some  already  abandoned),  the  one 
which  had  finally  obtained.  In  this  way  the  influence  of  legal 
science  perished  in  France.  Judges  would  have  studied  this  mass 
of  subtlety  to  no  purpose,  or  perhaps  to  their  great  detriment. 

It  was  far  worse  with  procedure ;  even  its  language  might  have 
been  termed  baroque.  Endless  ceremonies  made  up  a  ritual 
which  was  performed  with  delays  and  excessive  expense.     To 


Chap.  XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  599 

express  this  condition  of  things  people  called  it  briefly  ''  the 
jungle  of  procedure."  It  was  appropriate  and  true.  From  it 
litigants  often  emerged  ruined  and  invariably  bewildered. 

Complexity  had  another  inconvenience.  It  necessitated  judges 
especially  trained  for  that  sort  of  juridical  education,  and  capable 
of  playing  with  difficulties ;  parties  needed  to  be  represented 
and  they  must  be  skilful,  a  rare  occurrence.  It  obstructed,  conse- 
quently, any  reform  in  judicial  organization  or  economy  of  costs. 

How  to  return  to  simpler  methods?  The  Court  of  Cassation 
attempted  the  task,  but  its  success  was  limited.  It  struck  down 
here  and  there  a  few  dozen  theories,  as  a  necessary  consequence 
of  its  own  progressive  evolution.  But  difficulties  sprang  up  again 
in  the  path ;  it  had  to  overcome  the  views  of  jurists ;  it  could 
proclaim  common  sense  only  by  slow  degrees. 

The  third  stage  belongs  rather  to  the  future  than  the  present. 
It  has,  however,  been  realized  in  some  recent  codifications.  The 
German  Civil  Code  has  aimed  to  inaugurate  this  last  period  of 
legal  evolution  by  enunciating  broad,  comprehensive  principles 
in  preference  to  detailed  applications.  This  means  relative 
simplicity.  But  it  is  very  difficult  to  secure  effect  from  these  prin- 
ciples ;  and  the  Code  has  not,  therefore,  succeeded  in  its  aim. 

Two  juridical  monuments  did,  however,  succeed  in  their  effort 
towards  simplicity.  The  first  was  the  Code  of  the  Convention. 
In  this  respect  it  was  a  model.  It  discarded  all  superfluous  re- 
strictions and  provisions.  Liberty  was  fully  respected.  It  was 
certainly  by  such  a  code  as  this  that  we  should  have  progressed 
by  completing  its  more  deficient  parts.  It  did  not  require  long 
study  to  understand  or  apply  it.  The  Code  of  Procedure  shifted 
the  direction  of  the  evolution.  It  takes  pleasure  in  prohibitions 
of  all  sorts.  Everything  is  forbidden  or  limited,  or  under  sus- 
picion ;  the  testator  is  beset  by  pitfalls ;  causes  of  nullity  are  sown 
broadcast ;  the  dishonesty  of  the  litigant  and  the  subtlety  of  the 
lawyer  are  ever  made  profitable;  where  strong  expression  is  re- 
quired in  the  interest  of  the  public,  the  code  is  weak ;  it  all  but 
abolishes  publicity  in  transfers  of  title  and  in  the  law  of  hypothec. 

The  second  legal  monument  marked  by  great  simplicity  is  as 
yet  a  mere  project,  but  one  which  is  on  the  point  of  becoming  law. 
It  is  the  Swiss  Civil  Code,  a  most  remarkable  work  which  we  owe 
to  the  learned  jurist  Huber.^     It  is  marked  by  the  same  sim- 

*^  [See  note,  p.  596.  C/.  English  translation  by  the  Comparative  Law 
Bureau  of  the  American  Bar  Association  (Boston,  1915).  —  Trans- 
lator. 


600  PROCESS   OF    LEGAL   EVOLUTION  [Part  HI. 

plicity  as  the  Code  of  the  Convention,  but  it  is  far  more  complete, 
though  perhaps  a  Httle  brief  in  certain  parts.  It  is  curious  that 
in  the  country  where  law  had  reached  its  greatest  complexity,  it 
has  now  regained  the  greatest  simplicity. 

All  countries  are  due  gradually  to  follow  the  same  course.  Law 
w411  be  made  simple  so  far  as  possible. 

Evolution  again  appears  as  a  spiral.  Law  was  exceedingly 
simple  at  first ;  then  it  acquired  a  baroque  complexity,  both  em- 
barrassing and  useless ;  and  finally  it  became  ultra-simple  without 
being  deficient,  and  consequently  marked  by  great  clearness.  We 
have  come  near  to  the  ideal  code. 

§  8.  From  Material  to  Immaterial  Law.  At  the  dawn  of  civil- 
ization people  living  in  savage  and  barbarous  conditions  were 
incapable  cf  abstract  ideas.  For  them  everything  was  concrete. 
They  understood  only  what  was  material  and  tangible.  Barter 
was  an  instance.  Trade  was  carried  on  exclusively  in  this  fashion. 
Men  gave  with  one  hand  and  received  with  the  other.  There  was 
no  lapse  of  time  between  these  acts ;  no  confidence  was  given, 
no  glimmer  of  credit.  But  was  barter  the  fairest  method  of  which 
savage  man  had  knowledge  ?  Ordinarily  he  resorted  to  less  delicate 
means :  to  conquest  and  violence,  which  were  later  moderated  to 
peaceful  occupation  and  possession.  Violence,  or  at  least  forcible 
seizure,  was  the  commencement  of  law  with  all  peoples.  At  that 
stage  man's  instinct  was  restrained  only  by  fear  of  God.  We  shall 
refer  to  this  again  in  the  following  section. 

As  civilization  dawned,  this  state  changed  slowly  and  by  trans- 
itions. We  may  easily  note  these  throughout  the  evolution  of 
the  Roman  law.  After  first  requiring  a  material  act,  the  law  was 
satisfied  by  a  simulacrum.  It  was  the  period  of  symbolic  law. 
A  sale  at  first  took  place  by  bringing  the  movable  object  and  de- 
livering it  over  against  payment  of  the  price.  To  weigh  out  the 
price  in  uncoined  copper,  a  balance  was  needed,  and  to  hold  the 
balance,  a  third  disinterested  party.  Few  explanatory  words 
were  pronounced.  But  this  was  not  possible  in  the  case  of  land. 
A  clod  of  earth  was  then  brought,  which  took  the  place  of  the  land 
sold,  and  the  same  ritual  was  gone  through.  These  were  the 
beginnings  of  symbolic  law.  Later,  while  the  presence  of  the 
object,  movable  or  immovable,  was  always  required,  it  was  no 
longer  indispensable  that  the  copper  be  weighed  out  or  even  paid. 
However,  the  weighmaster,  the  "  libripens ",  remained  for  the 
sake  of  form.  Those  present  were  the  transferor,  the  transferee, 
the  weighmaster  and  five  witnesses.     The  weighmaster  held  in 


Chap.  XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  GOl 

his  hand  a  slender  rod  of  copper.  The  purchaser  touched  the 
object  and  pronounced  a  formula  by  which  he  asserted  his  right 
over  it ;  the  vendor  indicated  his  consent  by  silence ;  the  pur- 
chaser then  struck  the  balance  with  a  piece  of  uncoined  copper, 
which  he  gave  to  the  vendor  by  way  of  price.  This  fiction  imitated 
and  replaced  the  reality.  The  "  revindicatio  "  and  the  '*  in  jure 
cessio  "  w^ere  based  upon  the  same  principle ;  each  constituted  a 
fictitious  "  manci patio  " ;  they  were  symbols  of  symbols.  The 
same  was  true  of  the  testament  "  per  aes  et  libram." 

Germanic  law  went  through  the  same  process.  At  first  sanction 
hung  upon  the  accomplishment  of  a  material  act.  The  solemn 
disseizin  of  the  thing  to  be  alienated  was  effected  by  an  act  of 
renunciation  which  was  performed  by  a  yielding  up  of  the  object. 
This  took  place  on  the  land  itself.  The  alienator  surrendered  an 
object  detached  from  the  immovable,  a  clod  of  earth,  or  the  branch 
of  a  tree,  and  at  the  same  time  quitted  the  property.  This  was 
the  "  chrenecruda  "  of  the  Salic  law.  Later  came  the  symbol 
of  this  act  in  the  "  festuca."  It  was  enough  to  throw  any  object 
at  all  (the  "  festuca  ",  or  straw)  towards  a  third  party  as  evidence 
that  the  owner  w^as  thereafter  a  stranger  to  the  property  in  ques- 
tion. A  staff  was  also  used,  or  a  knife,  coins,  or  branches  of  a 
tree,  which  were  thrown  upon  the  ground  or  upon  the  person  of 
the  purchaser.  These  ceremonies  constituted  what  were  called 
in  Germanic  law  the  "  fides  facta  "  or  the  "  adhramire  ",  especially 
in  obligations. 

The  "  festuca ",  like  the  "  mancipatio ",  served  for  a  great 
number  of  juridical  acts,  for  example,  in  the  formation  of  obliga- 
tions. It  was  a  general  means,  which  had  originated  in  the  trans- 
mission of  property. 

From  svTTibolism  evolution  passed  on  to  juridical  acts  which 
were  quite  immaterial.  This  stage  need  not  be  described,  for  it 
is  that  which  exists  today.  Consent  has  become  the  dominant 
factor. 

However,  traces  remain  of  the  purely  material  stage  of  law  :  for 
example,  occupation,  tradition,  possession,  acquisitive  prescription. 

In  passing  from  the  idea  of  ownership  to  that  of  an  obligation 
the  immaterialization  of  law  was  more  difficult  of  attainment, 
and  the  conception  of  credit  consequently  came  later.  To  create 
a  tie  of  this  kind  between  two  persons  at  'first  seemed  impossible. 
It  was  believed  that  the  person  of  the  obligor,  who  was  said  to  be 
"  nexus  ",  must  be  actually  handed  over ;  in  default  of  payment, 
execution  took  place  upon  his  person,  not  upon  his  goods. 


602  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

The  manner  of  entering  into  an  obligation  was  analogous  though 
not  identical  with  that  employed  in  the  transfer  of  property.  It 
was  grafted  upon  the  latter,  and  so  there  grew  up  in  Roman  law 
all  that  important  group  of  obligations  called  real  contracts  (in- 
volving the  delivery  of  a  "res")-  Real  contracts,  properly 
speaking,  the  "  mutuum,"  etc.,  were  entered  into  by  the  delivery 
of  a  thing,  and  pacts  became  binding  in  the  same  way,  that  is,  by 
the  execution  of  one  of  the  promises. 

vSo  in  Germanic  law  the  obligation  was  undertaken  through  the 
performance  of  a  material  act,  the  "  res  prestita  "  or  tradition, 
which  gave  force  to  a  consent  otherwise  valueless. 

This  material  act,  which  was  complete  and  real,  was  often 
replaced  by  a  symbol,  as  by  the  giving  of  the  "  festuca."  The 
giving  constituted  the  "  fides  facta  ",  which  was  symbolic  of  the 
"  res  prestita."  Later  a  yet  more  immaterial  and  symbolic 
delivery  came  in,  that  of  the  delivery  of  a  title  deed. 

Is  immateriality  the  last  evolutionary  stage?  In  the  law  of 
property  and  obligations,  is  the  voluntary  and  contractual  phase 
the  last?  It  would  seem  so  at  first.  But  contemporary  legis- 
lation shows  the  contrary  to  be  true.  Money,  which  is  the  most 
immaterial  medium  possible,  is  very  near  to  seeming  antiquated. 
The  tendency  is  to  make  payments  by  setting  off  mutual  accounts, 
thereby  suppressing  money.  Yet  more  practical  and  current  is 
the  creation  of  negotiable  instruments  which  aim  to  concentrate 
in  a  paper  the  symbol  or  representation  of  the  thing,  of  values, 
indeed,  of  very  considerable  magnitude.  The  sale  then  takes 
place  by  reciprocal  deliveries,  a  true  barter. 

Here  again  we  observe  the  spiral  march  of  evolution :  1 .  mate- 
rial law ;  2.  symbolic  law ;  3.  immaterial  and  abstract  law ;  4.  neo- 
material  law  tending  to  revert  to  tradition  as  in  the  ancient  law. 

§9.  From  Formal  to  Formless  Law.  This  title  must  not  be 
confused  with  the  preceding,  although  a  certain  analogy  exists 
between  them.  The  symbolic  ceremonies  just  described  are  also 
a  mode  of  formalism,  but  with  these  differences  :  1 .  the  formalism 
of  symbolism  lies  in  acts  and  gestures,  while  the  formalism  that 
we  are  now  concerned  with  lies  in  words;  2.  the  formalism  of 
symbolism  had  a  material  origin,  whereas  the  origin  of  the  for- 
malism now  under  discussion  was  intellectual,  as  was  proper 
through  men's  faith  in  the  invisible  world. 

It  is  not  to  be  thought,  however,  that  the  formalism  we  are 
about  to  describe  is  in  any  way  connected,  at  least  directly,  with 
religious    influence.    We    shall    presently    study    this    influence, 


Chap.   XXV.]  THE  EVOLUTION   OF   CIVIL   LAW  603 

which  also  belongs  to  the  period  of  the  origin  of  law.  The  for- 
malism which  here  concerns  us  arose  from  a  yet  more  ancient 
trait,  the  love  of  the  miraculous  which  resides  in  the  human  mind 
through  superstition ;    in  other  words,  magic. 

In  a  remarkable  work  Frazer  ^  has  described  the  force  exerted 
by  primitive  magic  and  its  exact  resistive  power.  It  was  not  an 
instance  of  divine  worship.  On  the  contrary  savage  man  had  a 
presentiment  that  all  the  forces  of  the  world  were  intimately 
related  and  governed  by  laws  which  need  but  be  known  and  put 
into  action  for  him  to  become  master  of  the  world  and  even  of 
divinity.  Patient  search  for  these  laws  was  too  long  and  dif- 
ficult ;  they  must  needs  be  found  immediately.  People  endeav- 
ored and  believed  that  they  had  succeeded.  These  laws  were 
thought  to  be  contained  in  magical  words  and  gestures.  They 
were  collected  with  care  and  were  compiled  in  formularies.  By 
these  means  man  believed  he  was  placing  himself  above  God, 
above  everything ;  he  was  a  divinity ;  his  science  and  his  power 
were  magic.  According  to  Christian  doctrine,  cannot  the  priest 
by  the  use  of  sacramental  words  cause  the  Divinity  to  descend 
in  the  form  of  the  Host,  whether  He  will  or  not  ? 

Necromancy  has  affected  the  law,  though  not,  it  is  true,  in  all 
its  parts.  With  respect  to  the  right  of  ownership,  a  material  act 
or  its  symbol  might  possibly  suffice.  But  when  it  came  to  obli- 
gations, actions  at  law,  and  marriage,  these  matters  were  too 
exalted  to  have  such  an  origin.  And  besides  they  were  too  ideal- 
istic and  tenuous  to  be  realized  in  this  way,  for  in  them  everything 
depends  upon  consent,  a  frail  and  abstract  thing,  which,  as  we 
have  shown,  never  acquired  great  strength. 

How  could  consent  be  given  a  force  which  it  did  not  naturally 
have  ?  Our  intention  today  may  not  be  that  of  tomorrow.  We 
make  believe,  it  is  true,  that,  when  our  mind  meets  another's, 
it  is  thereby  bound.  But  by  virtue  of  what,  pray?  May  it  not 
release  itself?  Then,  moreover,  may  this  meeting  not  be  merely 
momentary  ?  All  the  early  Roman  law  so  held.  The  four  con- 
sensual contracts:  sale,  hire,  partnership,  and  agency  did  not 
appear  until  late.  The  "  real "  contract  possessed  the  material  basis 
described  in  our  preceding  section,  and  the  same  basis  served  for 
agreements  giving  rise  to  obligations.  Beyond  this,  consent  had 
no  power  to  create  a  contract.  How  could  a  power  be  imparted 
to  it?  By  magical  or  sacramental  words.  These  alone  were 
capable  of  binding  the  will. 

1  ["The  Golden  Bough."] 


604  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

Words  of  magic  were  utilized  in  several  ways  in  the  Roman 
law,  and  the  remarkable  thing  is  that  the  same  ceremony  came 
finally  to  serve  for. all  contracts.  One  was  the  form  "verbis" 
or  the  "  stipulatio."  It  consisted  of  a  question  and  answer  con- 
forming to  a  fixed  formula,  the  words  being  spoken  in  a  strict 
order.  If  other  words  were  used,  though  equivalent,  the  obliga- 
tion was  void.  There  were  even  words  which  only  certain  persons 
might  use.  Thus  "  spondeo  "  could  not  be  pronounced  by  the 
peregrin  so  as  to  be  productive  of  legal  consequence.  An  absent 
person,  not  being  able  to  be  heard,  could  not  stipulate,  even 
through  a  representative.  He  could  only  do  so  through  a  slave, 
because  the  persons  of  the  master  and  slave  were  regarded  as  one. 
If  there  was  the  slightest  variance  between  the  demand  and  the 
answer,  the  act  was  without  effect.  The  same  was  true,  if  too 
long  a  time  intervened  between  question  and  answer.  If  the  words 
were  regular,  the  contract  was  binding  regardless  of  the  intention 
of  the  parties.  These  facts  stamped  such  a  contract  as  one  of 
the  strict  law.  It  was  also  purely  unilateral.  The  promisor 
could  not  stipulate  so  as  to  bind  the  two  promises.  Each  was 
complete  in  itself ;  each  party  made  and  closed  his  own  promise. 
The  "  dotis  dictio  "  was  yet  more  solemn. 

The  contract  "  litteris  "  required  another  sort  of  ceremony, 
which  did  not  relate  either  in  any  way  to  the  question  of  proof. 
The  remarkable  feature  of  this  ceremony  was  that  it  was  not  the 
debtor  but  the  creditor  who  performed  it  by  making  an  entry  in 
an  account  book.  For  purposes  of  proof  such  an  entry  would 
have  been  without  value.  It  was  the  writing  which  took  the 
place  of  the  spoken  word  as  an  element  of  solemnity. 

Confusion  is  easy  between  the  solemnity  of  the  spoken  word, 
the  solemnity  of  the  writing,  and  the  proof  which  may  be  re- 
quired although  there  is  no  identity  between  them.  The  stipu- 
lation could,  indeed,  take  place  without  writing  or  witness ;  the 
writing  was  the  creditor's  alone  and  consequently  proved  noth- 
ing. 

The  solemn  contract  also  existed  in  Germanic  law.  It  was  not 
a  stipulation,  it  is  true,  but  in  the  last  phase  it  was  possible  to  bind 
oneself  by  oath,  which  is  closely  akin  to  the  order  of  ideas  which 
we  find  in  necromantic  words. 

Procedure,  which  developed  under  clerical  influence,  bears 
the  same  stamp.  We  know  how  Gains  tells  us  that  if  the  word 
*'  vites  "  were  employed  instead  of  ''arbores",  though  equivalent, 
the  action  was  immediately  lost.     For  the  rest,  procedure  was 


Chap.  XXV .J  THE  EVOLUTION   OF  CIVIL  LAW  605 

grafted  upon  the  form  of  the  stipulation.  Actions  at  law  were 
quasi-magical  ceremonies. 

A  vast  work  of  redaction  of  formulae  followed  the  Twelve  Tables. 
The  general  character  of  these  formulae  was  either  the  affirmation 
or  the  negation  of  the  right  or  fact  alleged  by  the  party  pronounc- 
ing the  words.  No  modification  was  allowed.  The  framing  of 
the  formulae  fell  to  the  pontifts  alone,  and  interpretation  conse- 
quently to  the  patricians,  until  Flavins  disclosed  the  formulae  to 
the  public.  It  was,  besides,  impossible  to  transact  legal  business, 
save  on  certain  days,  which  were  called  ''dies  fasti.'* 

Such  was  the  early  state  of  the  law  in  this  regard ;  these  were 
the  ways  by  which  the  will  could  be  bound. 

In  a  more  advanced  stage  this  narrow  formalism  was  abandoned 
though  never  completely.     Numerous  examples  survive  today. 

The  French  Civil  Code  and  the  Codes  of  Civil  and  Criminal 
Procedure  abound  with  them.     We  will  cite  but  a  few. 

In  civil  law  a  certain  number  of  contracts  exist  which  are  termed 
solemn,  in  which  not  only  the  ordinary  mode  of  proof  does  not 
suffice,  but  where  the  agreement,  though  admitted,  is  valueless 
unless  sacramental  words  and  forms  are  used.  Let  us  examine 
a  few.  * 

The  most  solemn  are  contracts  made  without  consideration,  and 
agreements  affecting  a  person's  status.  In  the  former  class  are 
gifts.  The  French  Civil  Code  requires,  under  penalty  of  nullity, 
that  a  deed  of  gift  be  executed  before  a  notary,  that  the  gift  be 
similarly  accepted,  and  that  it  be  subject  to  other  conditions  of 
form.  The  will  by  public  deed  is  still  more  solemn.  Besides  a 
notary,  there  must  be  present  several  witnesses;  the  formalities 
must  be  performed  without  interruption ;  the  will  is  taken  down 
by  dictation;  the  circumstances  of  the  execution  must  be  men- 
tioned ;  the  witnesses  must  have  full  capacity.  If  it  is  simply  a 
holographic  will,  the  law  requires  that  it  be  entirely  written  in 
the  hand  of  the  testator  and  dated.  It  would  be  vain  to  attempt 
to  prove  the  date  extrinsically  so  as  to  show  that  the  testator 
had  capacity  at  the  time ;  in  spite  of  such  proof  the  will  would  be 
void.  A  single  word  written  by  another  than  the  testator,  though 
with  his  consent,  annuls  the  whole.  The  same  consequence  flows 
from  the  incapacity  of  a  single  one  of  the  witnesses,  though  there 
be  three  who  have  capacity  besides  the  notary.  The  substantive 
provisions  of  the  will  are  subjects  of  strict  law. 

Civil  and  criminal  procedures  are  yet  more  formal,  indeed,  dis- 
astrously so.     The  most  minute  formality   in   civil   matters   is 


606  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

sanctioned  by  annulment  of  the  act ;  the  whole  process  must  be 
repeated.  The  rules  as  to  jurisdiction  are  based  more  upon 
juridical  symmetry  than  utility,  and  cause  endless  delays.  The 
action  to  recover  possession  conflicts  with  the  action  to  try  title ; 
interlocutory  proceedings  conflict  with  final  matters ;  questions  "  in 
personam  "  with  questions  ''  in  rem."  A  hair's  breadth  separates 
them,  yet  it  nevertheless  may  not  be  crossed.  Suits  are  referred 
from  one  jurisdiction  to  another  upon  the  slightest  pretext. 

Criminal  procedure  still  multiplies  the  formalism  of  word  and 
gesture.  Its  favorite  ground  is  the  Court  of  Assizes  with  its  jury 
trial.  If  any  one  is  more  nervous  than  the  attorney  appointed 
for  the  defense,  it  is  the  presiding  judge  or  the  jury,  but  above 
all  the  judge.  At  each  turn  he  fears  lest  he  may  commit  an  error 
involving  a  reversal.  And  he  does  commit  them  in  spite  of  him- 
self. A  righteous  man,  they  say,  sins  seven  times  daily;  the 
presiding  judge  under  such  circumstances  will  perhaps  sin  against 
form  still  oftener  during  a  single  trial.  Naturally,  his  mind  is 
occupied  far  more  by  questions  of  procedure  than  the  merits  of 
the  case.  For  one  moment  he  is  forgetful,  the  defendant  is  quick 
to  take  advantage,  and  the  whole  edifice  crashes  to  the  ground. 
An  appeal  is  taken  to  the  Court  of  Cassation ;  the  case  is  remanded 
to  some  other  Court  of  Assizes ;  it  again  goes  up  to  the  Court  of 
Cassation.  Its  course  is  not  unlike  the  popular  scenic  railway. 
And  all  this  is  favorable  to  the  defendant,  whose  position  finally 
arouses  the  pity  of  the  jury  or  of  the  chief  executive.  Before  the 
trial  commences  come  a  series  of  ceremonies  all  required  under 
penalty  of  annulment  of  the  proceeding.  The  rules  of  warning 
to  the  accused,  to  his  counsel,  and  to  the  jury  have  to  be  pro- 
nounced in  a  sacramental  form;  the  oath  before  God  and  man; 
the  verdict  pronounced  with  the  hand  upon  the  heart ;  the  verbose 
admonition  posted  in  the  jury  room,  are  so  many  more  formalities. 
The  verdict  of  the  jury  must  be  according  to  a  fixed  formula ;  hun- 
dreds of  questions  are  often  put  to  the  jury,  who  go  astray  in  the 
labyrinth.     It  is  the  triumph  of  form. 

Even  practice  is  tyrannized  by  form.  The  notary  slavishly 
follows  his  book  of  forms  in  drawing  up  his  documents ;  the  omis- 
sion of  a  few  words  may  be  costly. 

The  whole  law  is  replete  with  sacramental  language^  rendering 
it  unintelligible  to  the  public. 

§  10.  From  Theocratic  to  Secular  Law.  Throughout  their 
control  the  arts  and  institutions  of  men  were  not  only  under  the 
authority  of  religion  but  really  fell  within  its  domain.     With 


Chap.   XXV .]  THE   EVOLUTION   OF  CIVIL   LAW  607 

regard  to  the  arts,  this  has  long  been  known.  Architecture  and 
especially  sculpture  were  first  employed  for  the  temple,  and 
music  was  first  heard  there.  Philosophy,  too,  issued  from  the 
same  source,  just  as  science  later  was  itself  born  of  philosophy. 
We  will  find  the  same  to  have  been  true  of  law. 

Law  was  of  sacred  origin,  or  nearly  so,  at  least  with  a  certain 
number  of  races.  It  was  secularized  only  gradually,  and  even 
long  afterwards  preserved  traces  of  its  early  state. 

Let  us  observe  this  evolution :  1 .  in  the  very  sources  of  law, 
in  legislation ;  and  2.  in  its  various  institutions. 

The  sources  of  law  were  often  religious,  especially  where  mono- 
theism was  strong.  Law  was  not  only  influenced,  but  originated 
through  the  divinity  or  his  intermediary.  We  shall  observe 
this  in  detail  later  with  regard  to  the  Jews  and  Mohammedans. 
Before  proclaiming  a  new  law,  Moses  ascended  Mt.  Sinai  and 
brought  back  the  Tables.  They  were  inspired  laws,  pronounced 
by  God  Himself.  The  same  was  true  of  the  Koran.  It  was 
through  divine  inspiration  that  Mohammed  claimed  to  have  con- 
ceived his  concise  code.  It  is  yet  more  curious  that  not  only  was 
law  divine  but  also  its  judgments.  They  too  were  inspired.  The 
Hebrews,  as  we  shall  see,  consulted  Moses  upon  the  law  as  though 
he  were  a  veritable  oracle,  and  it  was  believed  that  his  reply  did 
not  come  from  him  but  from  God  Himself.  God  answered  also 
without  apparent  intermediary  through  the  ephod.  There  was 
then  no  mediation  properly  speaking  by  the  priest,  but  rather 
by  the  prophet.  Such  inspired  judgments  were  later  collected  and 
preserved  as  precedents  for  others.  Mohammed  also  consulted 
Allah,  when  called  upon  to  judge  differences,  and  his  decisions, 
being  of  divine  origin,  formed  a  body  of  divine  case-law,  so  to 
speak. 

Roman  law  confirms  the*  existence  of  this  evolutionary  stage. 
The  law  was  revealed  by  the  gods  and  constituted  the  "  fas." 
A  violation  of  the  law  was  an  offense  against  the  divinity,  and 
punishment  was  due  as  an  expiation,  that  public  calamity  might 
be  avoided.     The  "  sponsio  "  was  at  first  an  appeal  to  the  gods. 

The  same  was  true  of  the  earliest  Germanic  law.  It  was  divine ; 
priests  executed  its  penalties;  the  days  were  made  known  which 
were  held  propitious  for  each  sort  of  enterprise. 

Not  till  later  was  law  secularized  in  the  sense  that  it  was  no 
longer  directly  a  divine  product.  But  it  long  remained  in  part 
a  monopoly  of  the  priests.  In  Rome  they  had  to  be  robbed  of 
the   formulae   upon   which   legal   actions   depended.     Once   the 


608  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

people  mastered  these,  procedure  took  a  new  direction.  Man 
became  the  lawmaker;  he  it  was  who  henceforth  judged,  still 
surrounding  himself  with  a  numerous  ceremonial. 

But  on  the  reawakening  of  civilization,  the  notion  of  the  judg- 
ment of  God  appeared  again  in  the  ordeal.  At  moments  of  dis- 
tress when  there  seemed  no  way  of  securing  proof,  the  only  alter- 
native at  hand  was  to  consult  God,  who  would  decide  by  trials 
of  fire  and  water,  for  example.  But  this  sort  of  divine  judgment 
was  often  of  secondary  and  later  origin.  It  came  into  use  as  a 
substitute  only  when  the  judicial  duel  was  losing  ground. 

Indirectly  divine  law  still  dominated  human  law,  in  that  the 
enactments  containing  it  were  theological  codes  wherein  it  was 
mingled  with  law  in  its  pure  sense.  There  were  no  civilizations 
at  the  beginning  governed  by  pure  civil  or  pure  penal  law. 

The  second  phase  of  law  in  the  evolution  which  we  are  con- 
sidering was  that  of  secularization.  It  was  long  incomplete.  At 
first  the  lawgiver,  even  when  temporal,  still  preserved  a  quasi- 
divine  character.  In  his  own  way  he  was  regarded  as  inspired. 
Then,  as  in  the  case  of  the  ordeals,  the  spiritual  elements  of  society 
were  constantly  at  work  as  a  later  and  renewed  influence  in  tem- 
poral society. 

A  perfect  type  of  this  stage  is  found  in  the  Middle  Ages.  We 
are  not  speaking  of  the  ''  privilegium  fori ",  or  jurisdiction  re- 
served to  the  Church  over  its  clergy,  but  of  rights  affecting  every 
one.  These  included  :  1 .  jurisdiction  over  "  miserabiles  personae  ", 
widows,  orphans,  and  crusaders ;  2.  questions  relating  to  the  sacra- 
ment and  articles  of  faith,  and  consequently  actions  affecting 
matrimony  (marriage  being  a  sacrament) ;  betrothal,  legitimacy, 
status;  3.  benefices,  titles,  patronage;  4.  heresy,  sacrilege, 
sorcery ;  5.  wills  (because  of  the  Church's  interest  in  pious  gifts) ; 
6.  usury;  7.  adultery;  8.  the  right  of  asylum;  9.  jurisdiction 
over  all  contracts  under  oath. 

Divine  law  and  divine  judgments  did  not  exist  with  all  races. 
But  wherever  they  were  found,  among  the  Jews  and  Arabs  for 
instance,  they  retained  their  divine  force.  Since  books  which 
contained  them,  themselves  sacred,  were  unalterable,  it  was  only 
through  fictions  that  new  law  could  be  introduced. 

The  instances  of  clerical  influence  which  we  have  found,  in 
France,  for  example,  in  the  Middle  Ages,  were  a  secondary  growth. 
The  privileges  of  jurisdiction  only  extended  gradually,  and  the 
ordeals  are  not  discoverable  until  the  judicial  duel  disappeared. 

The  third  phase  is  that  of  almost  complete  secularization,  as 


Chap.   XXV. J  THE   EVOLUTION   OF  CIVIL   LAW  609 

in  France  today.  But  vestiges  of  the  old  state  survive  every- 
where. The  most  important  is  the  oath,  which  is  a  direct  invoca- 
tion to  God.  Its  solemnity  still  dominates  the  whole  of  French 
procedure.     But  it  in  turn  tends  to  disappear,  though  slowly. 

The  three  lines  of  evolution  which  have  just  been  described 
are  very  closely  alike,  so  that  they  are  easily  confused,  particu- 
larly the  last  two.     They  are,  however,  distinct. 

§  11.  From  Criminal  to  Civil  Law.  WTien  we  read  the  primitive 
law  books  of  a  people,  it  is  at  once  clear  that  there  rarely  existed 
a  civil  code,  properly  speaking.  But  we  often  find  in  the  sacred 
books  a  well-developed  criminal  code  in  which  were  interpolated 
fragments  of  civil  law.  From  this  we  may  at  once  infer  that 
criminal  law  was  of  much  earlier  date  than  civil  law  and  that  it 
embraced  the  civil  law.  Chinese  law,  among  other  systems, 
pro\ides  a  striking  example.  There  separation  of  civil  and  crim- 
inal law  is  unknowTi.  All  law  is  penal.  Consequently  a  civil 
breach  entails,  like  a  crime,  a  certain  number  of  blows  of  a  bamboo 
stick.  The  Gothic  law  in  Sweden,  the  Germanic,  and  the  He- 
braic laws  were  principally  penal.  The  Salic  law  aimed  to  regu- 
late a  composition  of  offenses.  Therefore  (law  being  little  known 
anyway),  people  were  much  better  and  sooner  acquainted  with 
penal  than  civil  provisions.  Knowledge  commenced  through  the 
criminal  law.  Furthermore  one  of  the  notions  of  many  primitive 
peoples  was  that  the  violation  of  a  contract  was  an  offense  affect- 
ing society  and  as  such  was  punishable.  The  law  was  revealed 
only  through  the  penalty  prescribed.  Today  we  have  a  contrary 
conception.  Wrongs  which  are  merely  breaches  of  contract,  even 
where  they  affect  the  person,  as  in  breach  of  trust  committed 
against  a  minor,  or  adultery,  tend  to  lose  their  tortious  character. 

It  is  very  natural  to  include  the  civil  law  within  the  penal  law, 
as  it  is  very  jiatural  to  include  civil  procedure  in  repressive 
procedure.  ^Mien  uneducated  persons  suffer  some  injury,  they 
instinctively  complain  to  the  police  and  are  astonished  when, 
instead  of  receiving  their  accustomed  protection,  the  police 
authority  declares  itself  without  jurisdiction  and  refers  the  com- 
plainant to  the  civil  courts. 

As  a  general  rule  penalties  disappeared  in  the  civil  law ;  it  won 
for  itself  an  autonomous  existence;  however,  criminal  law  con- 
tinued to  exercise  an  influence.  Thus  in  Roman  law  there  were 
frequent  examples  of  actions  which  were  at  once  civil  and  criminal. 
They  arose,  it  is  true,  out  of  torts,  but  at  times  out  of  certain  un- 
lawful juridical  acts.     So  today  certain  penalties  still  attach  to 


610  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

the  civil  law,  as  where  an  heir  who  fraudulently  conceals  property 
belonging  to  the  succession,  is  deprived  of  all  claim  in  the  part  con- 
cealed. Finally,  in  procedure  the  criminal  action  is  preliminary 
to  the  civil  action  or  suspends  it. 

On  the  other  hand,  during  a  certain  period  of  legal  history, 
criminal  law  became  entirely  private,  as  when  murder  and  other 
offenses  were  atoned  for,  not  by  punishment  but  by  a  pecuniary 
composition.  In  that  stage  the  whole  law  may  be  said  to  have 
become  civil. 

Is  future  evolution  in  the  direction  of  the  distinction,  almost 
absolute  today,  between  civil  and  criminal  law?  It  would  seem 
that  progress  would  be  towards  a  yet  more  complete  separation 
of  the  two.  For  example,  a  breach  of  the  law  gives  rise  to  a  two- 
fold action,  penal  in  protection  of  society,  civil  in  protection  of 
the  individual  injured.  These  often  absorb  one  another,  that  is, 
they  are  both  brought  in  the  criminal  court  or  one  in  the  civil 
court.  It  would  be  expedient  for  all  actions  sounding  in  tort  to 
belong  to  one  jurisdiction.  That  would  mean  that  the  criminal 
law  would  embrace  all  torts  from  every  point  of  view.  On  the 
other  hand  the  violation  of  a  contract,  for  instance  of  the  mar- 
riage contract,  gives  rise  to  a  criminal  action.  Many  claim  that 
this  action  should  be  civil  and  that  it  should  not  effect  more  than 
the  annulment  of  the  contract. 

Tracing  the  evolution  as  a  whole,  we  find  it  to  have  been  : 
1.  civil  law,  not  yet  independent  but  contained  within  the  crim- 
inal law;  2.  criminal  law  contained  within  the  civil  law;  3.  the 
imperfect  separation  of  the  two ;  later  a  perfect  separation.  There 
was  a  time  when  the  second  predominated,  for  example,  in  Roman 
law.     But  the  first  did  exist,  as  in  the  ''  partes  secanto."  ^ 

§  12.  From  Civil  to  Commercial  and  Industrial  Law.  We  have 
just  said  that  the  civil  law  was  for  a  long  while  embodied  in  the 
criminal  law.  So  commercial  law  was  contained  within  the  civil 
law,  where  it  long  remained  "  in  embryo."  The  Roman  law  was 
an  example.  It  contained  no  commercial  law  though  it  regulated 
a  few  contracts  of  a  commercial  nature.  It  was  the  same  with 
Barbarian  law  after  the  invasions.  Here  there  was  a  fresh  reason, 
in  that  the  invaders  found  a  civil  law  already  existing,  and  were 
not  traders,  except  in  the  sense  of  the  Normans,  who  trafficked  by 
pillage. 

1  [The  allusion  is  to  the  paragraph  in  the  Twelve  Tables,  permitting 
the  creditors  of  a  defaulting  debtor  to  divide  his  body  into  parts.  — 
Translator.] 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  611 

Commercial  law  developed  remarkably  even  in  the  Middle 
Ages,  and  it  possessed  qualities  peculiar  to  it,  quite  different  from 
the  civil  law.  It  was  and  it  has  remained  a  customary  and  highly 
equitable  law.  It  has  not  been  bound  by  the  juridical  history 
of  antiquity ;  it  has  become  uniform  through  the  continuous  con- 
tact of  merchants  of  different  races ;  it  created  for  itself  instru- 
mentalities, rapid  and  certain  in  their  action ;  from  the  very  out- 
set it  has  been  a  law  developed  by  usage,  and  this  fact  has  given 
it  great  superiority.  Commercial  law^  has  worked  the  greatest 
evolution  in  the  whole  body  of  private  law\ 

It  has  invaded  the  civil  law,  which  has  shaped  itself  to  it  in 
large  part,  especially  in  the  matter  of  obligations  and  contracts. 
The  Swiss  Federal  Code  of  Obligations  is  both  a  commercial  and 
a  civil  code.  In  France  the  Civil  Code  has  retained  control  of 
everything  relating  to  immovable  wealth,  while  the  Commercial 
Code  has  taken  over  almost  everything  relating  to  movables. 

It  was  commercial  law  which  first,  unconsciously,  attempted  to 
bring  uniformity  into  the  law  of  the  various  nations.  The  Oceans, 
indeed,  are  one  country.  The  commercial  law  has  everywhere 
been  looked  upon  with  favor ;  it  has  hewn  a  path  through  the  old 
obstacles,  requiring  only  what  is  indispensable.  It  did  not  rest 
content  to  create  its  own  sphere  of  action  ;  it  has  lately  undertaken 
(and  happily  so)  to  invade  the  part  of  the  Civil  Code  relating  to 
property.  Thus  quite  recently  civil  partnerships  have  been  as- 
similated almost  completely  to  commercial  partnerships;  civil 
instruments  of  credit  may  be  made  negotiable,  while  many  legisla- 
tions have  transformed  civil  insolvency  into  the  bankruptcy  or 
judicial  winding  up  ^  of  the  commercial  codes. 

As  a  law  develops,  we  do  not  perceive  that  it  bears  the  germ 
of  another  law.  As  opposed  to  civil  and  commercial  law,  indus- 
trial law  or  the  Code  of  Labor  was  at  first  unknown.  The  French 
Civil  Code  contained  a  few  provisions  relating  to  industry;  the 
Commercial  Code  devoted  a  chapter  to  the  pay  of  the  crew  of  a 
vessel.  Political  and  economic  revolutions  have  called  attention 
to  industrial  law.  Recently  a  draft  of  a  code  of  labor  was  under- 
taken by  first  uniting  the  scattered  enactments  and  then  merging 
them  into  one  body.  As  yet  it  remains  a  mere  project. ^  Our 
regard  is  now  turned  away  from  the  old-time  civil  law  towards 

^  [In  France,  as  in  most  countries,  bankruptcy  is  an  institution  of  the 
commercial  law  and  not  of  the  civil  law.  —  Translator.] 

2  [A  law  of  Nov.  26,  1912,  now  constitutes  the  Code  of  Labor.  —  Trans- 
lator.] 


612  :  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

this  newer  law.  The  Civil  Code  (which  was  designed  for  middle- 
class  traders)  and  the  Commercial  Code  have  lost  vogue.  Solici- 
tude for  the  working  class  is  no  longer  typical  only  of  the  politi- 
cian, but  of  the  sociologist  and  jurist. 

The  course  of  evolution  has  been  regular:  1.  inclusion  of  all 
private  law  in  the  civil  law ;  2.  appearance  of  commercial  law ;  its 
autonomy;  3.  absorption  by  commercial  law  of  the  civil  law  by 
a  merger  of  the  two ;  4.   birth  of  industrial  law. 

§  13.  From  Political  to  Private  Law.  This  movement  has  been 
less  perceived,  or,  at  least,  we  believe  that  the  factors  which  caused 
it  have  not  been  properly  estimated. 

To  make  the  title  to  this  section  complete,  we  should  say : 
"  From  Private  Law  to  Political  Law  and  from  Political  Law  to 
Private  Law." 

By  the  action  of  political  law  we  mean  the  transformation  of 
private  or  individual  law  through  the  influence  of  pure  political 
law.  For  the  status  of  persons  and  of  property  change  under 
external  pressure,  whether  through  conquest  from  without,  or 
domination  or.  bureaucracy  of  public  authority  from  within. 

Conquest  early  brought  to  civil  law  an  institution  not  present 
at  the  beginning  when  the  slate  was  clean.  This  was  slavery 
and  serfdom,  which  is  but  an  altered  mode  of  the  former.  A 
conquered  people  who  had  been  spared  their  lives  was  made  to 
labor,  relieving  their  conquerors  thereby  to  a  degree.  There  arose 
then  two  classes  of  persons,  one  superimposed  upon  the  other : 
the  freemen  and  the  slaves.  Their  condition  was  very  different 
and  this  fact  reflected  upon  the  whole  of  civil  law,  especially  among 
the  nations  of  antiquity.  It  was  external  political  law  which 
brought  this  about.  The  organization  of  the  family,  to  whom  a 
new  unit  was  thus  added,  felt  the  consequences. 

Later  this  element  disappeared,  though  traces  of  it  were  long 
evident,  as,  for  example,  in  the  relations  of  domestic  servants. 
Again  the  early  liberty  emerged  and  private  law  shook  off  this 
political  yoke. 

In  many  countries,  though  not  in  all  nor  from  the  outset,  in- 
ternal politics  influenced  the  private  law  of  the  individual.  There 
was  the  feudal  system,  which  we  now  know  was  not  exclusively 
a  product  of  the  Middle  Ages  nor  of  western  countries,  but  was  to 
be  found  everywhere  at  a  certain  secondary  stage  of  evolution. 

The  Merovingians  did  not  practice  the  feudal  system;  it  ap- 
peared under  the  Carolingians.  Public  office  assumed  great  im- 
portance and  was  a  road  to  wealth  and,  what  counted  most,  to 


Chap.   XXV.]  THE  EVOLUTION   OF   CIVIL   LAW  613 

landed  wealth.  At  first  it  was  held  for  life,  but  later  it  became 
hereditary.  Above  customary  law,  which  was  the  true  private 
law,  was  superimposed  feudal  law,  another  system  of  private  law 
wherein  the  political  element  dominated,  or  better,  customary 
law  developed  tow^ard  feudal  law  in  such  a  manner  as  to  be  en- 
tirely impregnated  by  it. 

The  same  phenomenon  took  place  in  China,  where  feudal  law 
was  a  later  growth  also.  There,  and  also  in  Japan  with  her  war- 
like habits,  it  resulted  from  an  overgrowth  of  military  power. 

Political  influence  disappeared  entirely  in  the  next  evolutionary 
phase.  Its  traces  endured  but  in  public  law,  not  in  private  law. 
In  its  turn  private  law,  now^  emancipated,  influenced  public  law, 
as,  for  instance;  in  copyhold  suffrage.  Under  such  a  system  pos- 
session of  land  alone  gave  political  power  and  constituted  the 
condition  of  suffrage.  Indeed  toward  the  end  of  the  feudal  period 
of  law  ow^nership  of  land  had  already  exercised  the  same  influence. 

Political  considerations  acted  upon  private  law  in  a  third  manner 
through  confiscation,  political  or  penal.  The  latter,  when  oc- 
casions for  it  became  numerous,  was  also  an  invasion  of  private 
law  by  political  law.  But  the  former  was  more  powerful  and  more 
directly  political  in  nature.  It  was  sometimes  exercised  individ- 
ually, a  manner  frequently  used  in  the  times  of  the  Roman  em- 
perors. It  also  operated  collectively.  Thus  the  French  Revo- 
lution confiscated  all  the  property  of  the  Church  and  nobility  and 
invested  the  purchasers  with  title ;  in  the  same  w^ay  the  English 
at  the  time  of  the  Conquest,  and  the  Gallo-Romans  at  the  time  of 
the  Prankish  invasion  were  partly  despoiled. 

But  reversions  to  former  conditions  are  frequent.  We  saw 
earlier  how  in  the  present  phase  of  the  law  when  individual  owner- 
ship has  been  completely  established,  a  breach  was  commenced 
and  is  being  enlarged  by  means  of  expropriation  for  a  public 
purpose. 

§  14.  From  Collective  to  Individualistic  Law.  We  need  but 
briefly  refer  to  this  movement,  as  the  subject  has  already  been 
devel()i)ed  in  a  former  chapter. 

Did  the  various  legal  rights  belong  exclusively  to  individuals 
or  collectively  to  groups  having  a  higher  standing,  such  as  the 
family  or  national  group  ?  The  answer  varies  according  to  the 
period. 

We  shall  examine  successively  the  two  principal  sorts  of  law, 
property  and  family.  The  law  of  property  is  subdivided  into 
two  sorts,  according  as  it  governs  movable  or  immovable  objects. 


614  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

The  former  category  belonged  at  the  very  outset  to  the  individual, 
at  least  as  a  general  rule ;  but  its  importance  was  then  almost 
insignificant.  Immovables  belonged  to  the  family  or  clan,  but 
in  each  case  ownership  was  collective  and  not  individual.  It  was 
only  by  usurpation  that  private  property  came  into  existence  and 
strengthened.     There  can  no  longer  be  any  doubt  about  this. 

When  finally  individual  right  had  triumphed,  the  other,  that  is 
to  say,  collective  property,  still  left  important  and  enduring  traces. 
With  the  Romans  the  "  ager  publicus  "  was  everywhere  a  domain 
of  the  State,  and  in  France  the  property  belonging  to  the  munici- 
palities is  still  enjoyed  in  common  by  the  inhabitants.  This 
property  may  be  considerable;  but  it  may  disappear,  as  in  fact 
is  happening  with  municipal  property  in  France.  The  time 
came  when  immovable  property  was  partitioned  in  this  way  until 
private  ownership  gained  the  entire  ascendency. 

Another  trace  of  collective  ownership  of  land  is  the  distinction, 
still  existing  in  principle  in  England,  though  only  in  form,  between 
the  ''  dominium  directum "  and  the  '^  dominium  utile."  The 
latter  is  private  property  in  the  true  sense ;  the  "  dominium  di- 
rectum" is  the  remains  of  primitive  collectivism,  centered  in  the 
sovereign  and  the  State.  It  is  this  "  dominium  directum  "  which 
may  be  the  spark  to  fan  the  early  communism  into  fresh  life. 

Yet  another  trace  of  the  primitive  collective  ownership  is  the 
need  felt  by  society  of  giving  fresh  consent  to  each  transfer  of 
individual  ownership,  as  though  the  property  reverted  for  a 
theoretical  instant  to  the  collectivity.  This  was  "  investiture  " 
under  feudal  law,  but  is  also  found  in  present  law. 

When  property  was  transferred  under  Roman  law  by  the 
"  mancipatio  ",  there  had  to  be  present  not  only  a  "  libripens  " 
but  also  citizen  witnesses,  representing  the  public.  The  notion 
of  representation  was  yet  more  striking  in  the  will  ''  calatis  comi- 
tiis",  in  which  the  popular  assemblage  played  a  legislative  role. 
It  was  not  possible  to  transfer  the  ownership  of  property  at  death 
unless  it  reverted  to  the  community,  to  emerge  again  immediately 
by  common  consent.  Germanic  and  customary  law  had  resort 
to  the  same  investiture.  Society  had  to  intervene  for  the  title 
to  be  again  transferred.  In  the  draft  of  the  German  Civil  Code 
an  investiture  of  form  was  still  required.  Finally  the  Torrens 
system  requires  upon  each  transfer  a  fresh  registration,  which 
is  accorded  by  society  after  a  verification  of  title. 

Individual  ownership  was  the  second  stage.  It  embraced  im- 
movable property,  which  had  passed  through  the  evolution  just 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  615 

described,  and  movable  property,  which  had  been  owned  individ- 
ually throughout  its  history.  Only  in  the  most  urgent  cases 
might  expropriation  for  a  public  purpose  be  authorized. 

Intellectual  property  remained  yet  longer  plunged  in  a  state 
of  public  ownership.  The  fruit  of  intellectual  labor  belonged  to 
society  as  a  whole.  In  France  by  the  end  of  the  1700  s  movables 
and  immovables  had  been  entirely  withdrawn  from  the  early 
collectivism,  while  intellectual  property  had  not  yet  emerged. 
From  that  time  individual  ownership  was  still  further  extended 
and  made  yet  more  exclusive,  so  that  by  the  middle  of  the  1800  s 
the  collective  phase  of  the  law  had  yielded  all  along  the  line  to  the 
individual  and  exclusive  stage. 

Then  evolution  recommenced,  moving  spirally  toward  a  new 
collective  stage.  This  evolution  has  finally  become  very  marked 
under  the  new  doctrine  of  collectivism.  But  at  first  it  was  un- 
conscious and  without  political  significance.  This  time  it  began 
with  movables,  which  had  increased  enormously  in  value,  equaling 
immovable  wealth.  The  process  was  indirect.  Commercial  and 
industrial  progress  had  been  immense,  especially  since  the  intro- 
duction of  scientific  machinery.  But  to  set  this  in  motion,  capital 
had  to  be  accumulated.  Enterprises  came  to  be  carried  on  by 
thousands  of  persons  placing  their  capital  in  common.  Com- 
panies, numerous  and  powerful,  have  become  points  of  concen- 
tration, so  to  speak,  where  joint  and  collective  ownership  has  re- 
appeared. The  individual  no  longer  owns  this  property  except 
in  the  form  of  shares  of  stock. 

But  private  ownership  of  land  persists,  though  the  contagion 
of  collectivism  may  reach  it  too.  Indeed,  the  new  doctrine  aims 
to  socialize  all  wealth.  In  France  the  progressive  inheritance  tax 
has  already  made  a  beginning;  the  income  tax  stimulates  the 
movement ;  government  ownership  of  railroads  and  mines  will 
realize  it  in  part. 

The  spiral  progress  of  the  law  is  again  evident:  1.  initial 
collectivism ;  2.  private  ownership ;  3.  tendencies  toward  a  new 
collectivism  and  their  partial  realization.  We  have  already 
explained  how  the  new  collectivism  is  to  be  distinguished  from  the 
old. 

A  similar  evolution  has  gone  on  in  the  law  of  persons  and  of  the 
family. 

Marriage  was  at  first  really  plural.  In  proof  of  this  we  need 
not  cite  the  period  of  promiscuity  claimed  by  certain  authors. 
Indeed  in  a  state  of  promiscuity  there  would  be  no  marriage. 


616  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

However,  such  a  state  did  exist  at  times,  as  in  Lacedemonia ; 
but  it  must  be  regarded  as  the  exception. 

It  is  almost  certain  that  at  least  polyandry  was  the  rule  almost 
everywhere.  All  the  men  of  one  clan  were  the  husbands  of  all 
the  women  of  another.  This  was,  if  we  suppose  marriage  at  all, 
the  farthest  possible  point  of  indi vision.  Later  marriage  to  a 
group  of  brothers  restricted  this  situation  somewhat.  We  find 
traces  of  it  among  the  Nairs.  Brothers  were  husbands  of  the  same 
woman.  Finally  a  woman  could  belong  to  but  one.  That  was 
the  beginning  of  monandry;  common  ownership,  marital  collec- 
tivism ceased. 

The  same  man,  it  is  true,  might  have  several  wives,  so  that 
monandry  constituted  polygamy.  But  the  woman  was  the  pivotal 
point  of  the  family ;  through  her,  filiation  was  rendered  certain. 
So  long  as  she  lived  with  but  a  single  man,  the  child  belonged  to 
two  parents,  who  not  only  brought  it  into  the  world  but  possessed 
it  in  common  and  raised  it,  endowing  it  with  their  race  and  goods 
upon  a  determinable  basis. 

This  was  the  matriarchal  period ;  patriarchy  followed. 

But  there  succeeded  to  this  collectivism  a  secondary  stage,  of 
a  polygamous  patriarchy.  Man  had  several  lawful  wives.  Some- 
times of  different  ranks.  Their  rights  were  in  a  true  sense  col- 
lective; each  wife  shared  the  husband.  We  get  an  ingenuous 
picture  of  the  relationship  in  the  biblical  story  of  Leah  and 
Rachel. 

To  polygamy  succeeded  monogamy,  from  which  all  notion  of 
collective  right  was  excluded.  It  grew  stricter  with  time.  The 
"  concubinatus  "  was  for  a  while  tolerated  ;  then,  when  prohibited, 
it  descended  to  the  lower  and  extra-matrimonial  level  of  concubi- 
nage. Monogamy  pure  and  simple  alone  remained,  just  as  in  an- 
other order  of  ideas  the  right  of  ownership  became  entirely  in- 
dividualistic. The  evolution  continued  and  it  became  agamy; 
celibacy  was  extolled  by  certain  religions.  The  marriage  contract 
became  absolutely  indissoluble.  Then  commenced  an  evolution 
of  the  same  nature  as  that  which  took  place  in  property.  The 
marriage  tie  gradually  loosened;  divorce  put  an  end  to  its  in- 
dissolubility. 

First  granted  for  determined  causes,  it  finally  takes  place  by 
mutual  consent.  Morals  have  relaxed  and  matriarchy  has  re- 
asserted its  main  features  in  what  is  known  as  feminism.  Finally 
we  are  reaching  the  stage  of  freedom  of  divorce,  where  the  wife 
is  no  longer  a  subordinate  member,  and  where  she  reassumes  her 


Chap.   XXV .]  THE   EVOLUTION   OF  CIVIL   LAW  617 

independent  personality.     In  this  phase  the  increased  uncertainty 
as  to  paternity  causes  a  reversion  to  primitive  conditions. 

After  enjoying  in  her  early  history  an  absolute  freedom,  the 
woman  was  imprisoned  in  the  harem,  and  later  in  the  gynaeceum. 
Freed  from  these  restraints  she  made  her  entrance  into  the  outer 
world,  remaining  merely  an  object  of  legal  inferiority.  Her 
tendency  today  is  to  emerge  from  this,  first  obtaining  her  civil 
rights  and  later  her  political  rights. 

So,  like  property,  matrimony  first  traversed  a  phase  of  collec- 
tivism, then  a  period  of  absolute  individualism,  and  finally  it  has 
returned  to  a  new  state,  which,  while  it  cannot  be  called  a  collec- 
tivism, at  least  means  an  almost  complete  freedom  to  contract 
new  relationships. 

§  15.  From  Esoteric  to  Popularized  Law.  Here,  again,  our 
formula  is  incomplete  and  should  read :  "  From  a  Law  Possessed 
in  Fact  by  the  People  to  Esoteric  Law  and  to  a  I^aw  Possessed 
Juridically  by  the  People."  The  evolution  really  shows  three 
stages. 

In  the  beginning  no  direct  publicity  was  thought  of,  nor  was 
there  any  need  of  it,  since  events  transpired  within  limited  areas, 
under  the  eye  of  every  one  and  close  to  the  object  affected.  So  far 
as  publicity  was  concerned,  it  was  enough  that  a  visible,  repeated, 
and  notorious  act  should  give  notice  to  third  persons  that  a  com- 
peting right  could  not  longer  be  created  which  was  capable  of 
destroying  the  first  right.  Especially  in  the  law  of  property  or 
of  the  creation  and  transfer  of  rights  "  in  rem  "  is  such  notoriety 
necessary.  Third  parties  are  thereby  warned  and  the  owner  of 
the  right  is  secured. 

The  Roman  law  of  property  recognized  several  modes  of  transfer : 
tradition,  "  mancipatio  "  and  the  unilateral  method  known  as 
"  usucapio."  The  last  was  an  essentially  public  mode.  WTien  a  per- 
son was  observed  constantly  in  possession,  it  was  a  fair  presumption  ^ 
that  he  had  rights  in  the  thing.  When  a  vast  tract  of  land  was  sold , 
it  may  have  been  that  certain  parts  of  it  had  not  been  seen.  But 
if  it  was  very  limited,  the  fact  of  the  sale  itself  was  notorious  and 
was  in  every  way  equivalent  to  registration.  With  regard  to  the 
hypothec,  the  external  evidence  was  less.^     Indeed,  there  was 

1  [The  hypothec  (the  mortgage  of  the  Civil  Law)  is  a  real  right  to 
the  satisfaction  of  an  obligation  over  immovables.  (Fr.  Civ.  C.  Art. 
2114.)  It  differs  from  the  mortgage  of  the  Anglo-American  law  prm- 
cipally  in  the  fact  that  it  is  not  a  conveyance  but  simply  the  granting 
to  a  creditor  of  a  lien  or  right  of  property  over  certain  specific  real 
estate  of  the  debtor.  —  Translator.] 


618  PROCESS   OF   LEGAL   EVOLUTION  [Part  HI. 

none  unless  we  consider  the  simple,  but  highly  effective  pro- 
cedure of  the  Greeks,  who  use  posts  to  mark  the  land  charged 
with  hypothec.  Finally  resort  was  had  to  another  procedure, 
the  English  mortgage.  In  this  the  whole  title  to  the  land  is  trans- 
ferred to  the  mortgagee  by  the  ordinary  means,  subject,  however, 
to  the  condition  that  it  will  be  retransferred  upon  payment  of  the 
debt.  Here  the  same  element  of  publicity  exists  as  in  an  uncon- 
ditional transfer  of  the  property.  With  regard  to  movables 
manual  tradition  sufficed,  since  the  transferee  is  thereby  materi- 
ally secured.  If  social  groups  had  remained  limited  as  of  old, 
there  would  have  been  no  need  for  any  other  sort  of  publicity. 

But  the  circle  widened  and  publicity  resorted  to  other  means 
to  be  effective.  These  were  not  consciously  sought  at  first.  The 
old  notoriety  disappeared  without  an  effort  being  made  to  replace 
it.  Law  became  secret.  Such  was  the  situation  in  Rome,  both 
as  to  ownership  and  to  hypothec.  Early  French  law  instituted 
with  regard  to  property  a  very  indirect  form  of  publicity  resulting 
from  investiture ;  but  in  the  case  of  the  hypothec  there  was  noth- 
ing. The  idea  of  creating  a  publicity  of  status  and  capacity  was 
still  more  remote.  This  situation  had  many  disadvantages.  After 
a  violent  reaction  in  the  Revolutionary  period  when  the  Law  of 
II  Brumaire,  Year  VII,  aimed  to  create  an  effective  publicity, 
France  plunged  still  deeper  into  the  system  of  secrecy. 

A  definite  return  to  publicity  occurred  in  all  countries  during 
the  last  century.  France  took  her  first  step  in  the  law  of  1855, 
regulating  the  hypothec;  Australia  offered  a  perfected  model  in 
the  Torrens  Act,  as  did  also  the  city  of  Bremen.  The  Prussian 
law  and  the  German  Code  followed  and  the  example  spread  to 
many  countries.  Here  we  have  passed  beyond  the  stage  of  a 
simple  publicity  to  a  double  publicity  wherein  the  legality  of  the 
act  depends  upon  notoriety.  Future  evolution  is  directed  toward 
a  greater  and  greater  publicity. 

Germany  has  introduced  a  vast  system  of  another  kind  in  her 
various  books  of  registry.  Registers  of  personal  status,  the  com- 
mercial register,  the  register  of  inheritances,  the  marine  register 
were  established. 

The  normal  evolution  has  been:  1.  publicity  through  visible 
acts ;  2.    secrecy ;  3.   complete  publicity  by  registration. 

Incidentally  publicity  has  destroyed  many  long-standing  in- 
justices, notably  the  usucapion. 

Beyond  publicity  by  registration,  which  would  seem  the  limit, 
there  is  appearing  another  method  yet  more  complete  and  rapid, 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  019 

consisting  of  the  possession  of  instruments  endorsable  or  to  bearer. 
He  alone  is  recognized  as  owner  who  possesses  the  instrument 
evidencing  the  title.  What  can  be  more  public?  The  soil  is 
converted  into  a  movable ;  land  is  made  negotiable  and  may  be 
carried  in  one's  pocket;  the  instrument  may  be  exhibited  on 
demand;  it  gives  to  ownership  its  highest  form  of  material 
proof. 

§  16.  From  the  Outward  Act  to  the  Mental  Act  as  Creative  of 
a  Right.  We  have  seen  that  the  two  elements  which  may  gen- 
erate rights  are  the  thing  or  the  person^  that  is  to  say,  a  material 
fact  or  consent.  These  two  powerful  factors  are  wholly  different 
in  nature.  They  did  not  exist  contemporaneously  at  first;  a 
certain  growth  took  place  from  one  to  the  other. 

A  right  was  at  first  absolutely  material ;  it  was  the  product 
either  of  a  violent  act,  of  force,  or  at  least  of  a  physical  act.  The 
real  contract  was  the  first  to  come  into  existence.  In  the  "  mu- 
tuum  ",  I  deliver  over  a  sum  of  money  on  the  condition  that  it 
shall  be  repaid  at  a  certain  time.  It  is  not  so  much  the  agreement 
which  becomes  the  "  cause  "  (consideration  or  motive)  of  the 
obligation,  as  the  fact  of  having  received  another's  money.  This 
fact  is  the  *'  justa  causa."  So  pacts  were  powerless  to  create 
obligations.  They  could  do  so  only  if  bilateral  and  executed  upon 
one  side.  In  that  case  a  ''  res  "  had  been  furnished  and  the  con- 
tract came  into  existence  from  that  moment,  being  formed  "re." 
The  same  was  true  of  the  "  mancipium  "  in  so  far  as  it  was  pro- 
ductive of  a  transfer  of  title  and  of  an  obligation.  The  payment, 
real  or  symbolical,  by  means  of  uncoined  copper  constituted  the 
"  res."  Finally  the  very  numerous  obligations  arising  out  of 
tort  or  quasi-tort  were  formed  **  re  '*  ;  the  "  res  "  was  the  damage 
caused.  In  certain  systems  even  marriage  was  complete  and  pro- 
ductive of  certain  juridical  consequences  (dower,  for  instance) 
only  after  consummation. 

At  that  early  period  consent  had  almost  no  force  to  create  a 
right,  and  at  first  to  bring  about  such  an  effect  it  had  to  be  grafted 
upon  the  "  res."  In  this  way  a  pact  when  formed  "  re  "  admitted 
of  collateral  terms  which  were  recognized  as  legal,  such  as  the 
"  pacta  adjecta."  The  quasi-contract  was  very  much  prior  in 
date  to  the  contract. 

But  consent,  which  was  at  first  very  feeble,  finally  secured  a 
certain  force.  Roman  law  admitted  it  exceptionally  in  four  con- 
tracts. Sale  was  one  of  these,  but  exchange  was  excluded.  Mar- 
riage came  to  be  consensual.     With  us  today,  all  contracts  either 


620  PKOCESS   OF   LEGAL  EVOLUTION  [Part  III. 

are  or  may  be  consensual ;  indeed,  the  transfer  of  ownership  may 
be  effected  by  the  mere  intention  of  the  parties. 

For  intention  to  be  binding  it  must  come  in  contact  with  another 
intent.  Otherwise  it  is  a  mere  offer  having  no  decisive  conse- 
quence. And  yet  sometimes  unilateral  consent  is  enough  to 
create  a  unilateral  obligation.  But  the  principle  is  hardly  ad- 
missible and  has  been  frankly  enunciated  only  by  the  modern 
German  law. 

In  other  systems,  consent  is  inoperative  without  "  considera- 
tion ",  that  is  to  say,  a  valuable  "  cause." 

We  have  determined  the  curve  of  the  evolution.  At  one  end 
the  contract  formed  solely  by  a  "  res  " ;  at  the  other  end  the  con- 
tract by  consent.  The  domain  of  the  ''real"  obligation,  the 
quasi-contract,  the  tort  and  quasi-tort  are  still  very  vast. 

In  this  evolution  there  is  something  analogous  to  the  movement 
from  the  visible  to  the  idealistic. 

Progress  has  brought  us  to  a  sort  of  juridical  immaterialism. 
But  it  has  evidently  been  exaggerated,  as  we  see  by  the  law  of 
the  transfer  of  property  and  of  negotiable  instruments.  Owner- 
ship, that  is  to  say,  the  right  opposable  to  third  parties,  cannot  in 
reason  be  transmitted  by  mere  consent.  There  must  be  besides 
some  act  notifying  third  persons,  and  this  act  (registration,  for 
instance),  remains  the  "  res."  Even  with  regard  to  movables, 
delivery  or  registration  is  still  necessary  if  the  right  is  not  to  re- 
main strictly  "  inter  partes."  Finally  delivery  definitely  pre- 
vailed in  the  case  of  negotiable  instruments  and  a  material  object. 
The  last  stage  of  the  evolution  is  therefore  marked  by  the  need 
of  bringing  together  "  res  "  and  "  consensus."  Intent  alone  is 
too  feeble ;  it  needs  confirmation. 

§  17.  From  Rights  "  in  rem  "  or  Real  Rights  to  Rights  "  in 
personam  "  or  Personal  Rights.  The  right  "  in  rem  "  was  cer- 
tainly much  prior  to  the  right  "  in  personam  "  and  the  passage 
from  one  to  the  other  occurred  insensibly.  After  meeting  with 
numberless  difficulties  the  latter  dominated.  It  was  the  right 
"  in  personam  "  which  made  credit  possible  and  which  imparted 
great  flexibility  to  the  whole  body  of  law  in  its  purely  economic 
aspects;  it  is  the  indispensable  element  of  commerce.  But  the 
more  it  increased  in  elasticity  and  serviceableness,  the  more  it 
presented  at  first  seemingly  insurmountable  difficulties.  The 
opposite  was  true  of  the  right  "in  rem ",  at  least  the  right  of  owner- 
ship, which  has  become  extremely  awkward. 

The  real  right,  above  all  that  of  ownership,  which  does  not  lean 


Chap.   XXV.]  THE  EVOLUTION   OF  CIVIL   LAW  621 

upon  another  real  right,  was  the  simplest.  It  was  attached  directly 
to  the  thing;  there  was  a  sort  of  union  between  a  man  and  his 
land.  The  causes  which  brought  the  tie  into  being  disappeared ; 
only  their  consequences  continued  to  be  felt.  Xo  other  party 
seemed  involved,  and  this  intimacy  between  man  and  his  land  or 
his  house  made  ownership  seem  the  most  natural  thing  in  the  world. 
The  same  was  not  true  of  a  personal  right  or  obligation.  Its  ever 
present  *'  cause  "  is  rarely  forgotten.  A  promise  to  pay  the  price 
involves  still  a  reminder  of  the  object  sold  ;  and  obligation  to  lease 
land  involves  a  reminder  of  the  rent.  Moreover  a  constant  and 
often  delicate  relationship  is  established  between  the  creditor  and 
the  debtor,  personal  from  every  point  of  view.  I  am  not  indif- 
ferent whether  a  particular  tenant  cultivates  my  land  or  whether 
he  procures  another  to  cultivate  it  for  him ;  nor,  above  all,  whether 
a  certain  workman  performs  the  work  I  have  contracted  for 
or  whether  he  secures  another  to  perform  it.  In  these  cases  my 
right  in  the  object  is  not  direct ;  it  first  passes  through  an  inter- 
mediate party,  the  owner.  It  is  Evident  how  much  less  primitive 
and  natural  the  right  of  the  creditor  is  than  the  right  of  the  owner. 
Add  to  this,  that  the  debtor  may  be  insolvent,  but  that  this  house 
or  land  is  less  apt  to  be  unproductive,  and  the  hesitancy  to  be- 
come a  creditor  is  explained.  Ownership  had  long  existed  when 
the  personal  right  of  the  creditor,  an  essential  element  of  every 
obligation,  was  still  a  thing  of  the  distant  future. 

We  may  now  follow  the  genesis  of  the  obligation.  When  the 
personal  right  first  appeared  in  the  Roman  law,  the  same  methods 
were  used  as  in  the  creation  of  the  right  of  ownership.  The 
»  creditor  became  the  owner  of  the  person  of  the  debtor.  This 
was  the  oldest  form,  the  ''  nexum."  The  debtor  declared  in  ad- 
vance that  he  became  his  creditor's  slave  in  case  he  did  not  pay. 
Before  the  debt  was  due,  he  worked  provisionally  as  a  slave  for 
the  account  of  his  creditor  until  the  obligation  was  satisfied.  He 
bound  himself  *'  per  aes  et  libram  " ;  he  delivered  over  his  person, 
his  goods  and  the  freemen  under  his  authority.  The  ''  nexum  " 
was  abolished  by  the  ''  Lex  Poetilia  ",  but  it  is  a  good  illustration 
of  the  early  sociological  phases  of  the  law.  If  the  debtor  de- 
faulted he  (the  "  nexum  ")  and  his  entire  estate  were  sold.  In 
every  case,  the  ordinary  debtor,  failing  to  pay,  fell  into  slavery 
by  the  *'manus  injectio",  whether  he  was  "judicatus",  or  "  con- 
fessus  in  jure."  The  formalities  of  the  "  manus  injectio  "  are  well 
known.  The  debtor  was  '*  addictus  ",  that  is,  awarded  to  his 
creditor.     From  that  moment  he  lived  "  in  servitude  "  as  though 


622  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

he  were  a  slave ;  at  the  end  of  sixty  days  the  creditor  sold  him  as  a 
slave.  The  creditor  was  thus  paid  by  realizing  upon  the  pledged 
person  and  goods  of  his  debtor. 

We  have  emphasized  this  point  as  being  essential.  It  proves 
how  a  personal  right  could  appear  at  first  only  as  a  sort  of  property 
right  over  the  person  of  the  debtor  and  that  it  could  not  reach  his 
goods  exclusively  and  directly,  nor  create  an  abstract  and  im- 
material tie  between  man  and  man.  A  bridge  had  to  be  thrown 
across  the  abyss  to  reach  the  immaterial  right  constituting  an  obli- 
gation. 

Of  course  the  law  did  not  remain  in  that  stage.  The  debtor 
was  liberated  from  his  servitude.  He  was  merely  obligated,  or 
we  might  better  say  that  the  creditor's  property  right  descended 
from  the  debtor's  person  to  his  estate.  If  he  failed  to  pay,  his 
creditor  proceeded  to  sell  his  entire  patrimony  by  the  "bonorum 
venditio." 

Lastly  the  patrimony  as  a  whole  was  unfettered.  The  creditor 
seized  only  one  object  or  part  of  the  debtor's  property,  sufficient 
in  value  to  replace  the  object  of  the  debt ;  this  was  the  ''  bonorum 
distractio."  The  system  is  still  in  force  among  us,  except  in  the 
case  of  bankruptcy,  where  we  employ  a  procedure  similar  to  the 
"  bonorum  venditio." 

But  for  a  long  time  a  trace  remained  of  the  primitive  procedure 
in  the  seizure  of  the  person,  which  was  a  survival  of  the  notion 
that  an  insolvent  debtor  belonged  in  a  way  to  his  creditor. 

Such  has  been  the  path  from  the  real  right  and  ownership  to  the 
personal  right. 

The  transition  also  took  place  in  another  manner.  To  strengthen 
the  creditor's  right,  solid  guarantees  had  to  be  furnished  and 
that  was  only  possible  by  those  special  forms  of  security,  the  pledge 
and  hypothec.  The  pledge  was  quite  simple  because  the  creditor 
performed  a  visible  act  in  taking  possession.  But  the  hypothec 
was  more  difficult  because  the  right  was  incorporeal.  The  debtor 
remained  in  possession  of  his  property;  the  creditor  could  only 
be  assured  of  his  right  by  some  symbol  sensible  to  all,  especially 
by  registration.  But  at  first  there  was  no  public  register,  no 
writing.  The  creditor  would  have  had  to  take  possession  of  the 
land  and  that  would  have  imposed  a  hardship  upon  the  debtor  who 
could  no  longer  cultivate  it.  Moreover  other  creditors  would  not 
know  by  what  title  the  lien  creditor  held  the  property,  and  so 
might  claim  to  compete  with  him.  So  much  for  the  practical 
aspects.     While  the  transfer  of  the  totality  of  an  obligation  by 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  623 

giving  possession  was  understood  theoretically,  it  was  less  clearly 
seen  that  a  right  in  a  right  or  a  dismemberment  of  the  property 
right  could  be  effected  in  the  same  way  or  any  other  way.  The 
difficulty  was  overcome  by  making  a  transfer  of  ownership  the 
basis  of  the  hypothec. 

In  the  Roman  law  the  creditor's  right  in  the  hypothec  was  merely 
the  praetorian  extension  of  the  **  actio  Serviana  "  ;  the  process  was 
therefore  less  visible.  It  was  otherwise  with  the  pledge.  This 
came  into  existence  by  a  delivery  to  the  creditor,  qualified  by  a 
"  fiducia  "  clause,  that  is  to  say,  an  undertaking  by  the  creditor 
to  retransfer  the  property  upon  payment.  The  personal  right 
thus  had  root  in  the  real  right.  Pledge,  too,  was  not  the  only 
contract  operating  in  this  way.  It  was  also  true  of  the  bailment. 
The  "  fiducia  "  was  an  agreement  added  to  the  "  mancipatio  " 
and  the  ''in  jure  cessio'',  that  is  to  say,  to  solemn  acts,  but  not 
to  mere  tradition.  Later  bailment  became  consensual.  At  first 
a  guardian  was  owner  of  the  property  under  his  management.  It 
would  have  been  impossible  then  to  have  conceived  of  an  adminis- 
tration in  any  other  way.  The  guardian  turned  over  the  property 
when  the  ward  attained  the  age  of  puberty.  More  than  this, 
the  hypothec,  even  before  the  introduction  of  this  equitable  ac- 
tion, could  be  formed  by  a  transfer  of  the  property  subject  to  a 
**  fiducia  "  clause. 

The  evolution  was  much  more  remarkable  in  English  law. 
The  characteristic  feature  of  the  mortgage  is  the  transfer  of  title 
to  the  mortgagee,  subject  to  an  agreement  by  the  latter  to  restore 
the  property  in  case  of  payment.  In  case  of  default  he  retains 
the  ownership  without  any  further  act.  Moreover  he  collects 
the  profits,  applying  them  to  the  debt.  That  is  the  situation  at 
law.  Equity  gradually  restored  the  real  aim  of  the  mortgage. 
But  what  is  worthy  of  remark  here  is  the  manner  of  grafting  a 
right  of  guaranty  upon  a  right  of  ownership.  It  was  impossible 
to  create  the  guaranty  without  transferring  title,  the  reason  being 
that  the  conception  of  a  personal  right  was  difficult. 

It  is  true  that  Roman  law  was  able  to  create  a  personal  right  by 
a  single  act,  without  so  involved  a  genesis,  by  means  of  the  '*  stipu- 
latio."  But  then  it  was  necessary  to  resort  to  superhuman  inter- 
vention, or  to  rites  at  first  probably  magical,  which  limited  the 
party's  intent  on  every  hand.  We  have  already  described  it. 
But  when  this  ceremony  had  been  performed,  the  effects  of  the 
personal  right  were  again  directly  a  real  or  fictitious  transfer  of 
property. 


624  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

In  this  way  arose  the  personal  right.  Still  feeble,  though  in 
current  use,  it  was  this  right  in  conjunction  with  the  right  of  owner- 
ship which  created  credit  and  commerce.  It  was  destined  to  have 
a  fresh  development;  but  it  retained  its  foundation  in  the  real 
right  much  as  banks  of  issue  maintain  a  basis  for  their  notes  in 
their  reserve.  The  position  of  the  creditor  is  but  temporary. 
In  time  he  reconverts  his  right  into  material  property,  into  a  new 
ownership.  But  for  a  while  the  chose  in  action  lives  of  its  own 
force.  To  do  so  completely,  the  right  arising  out  of  the  obligation 
had  to  be  transferable  and  also  the  solvency  of  the  debtor  had  to 
be  adequately  assured. 

Now  at  first  this  right  was  untransferable ;  it  could  not  be 
detached  from  the  person  of  the  creditor.  The  Romans  for  a 
long  period  adhered  rigorously  to  this  view.  It  was  impossible 
to  move  a  personal  tie  of  this  sort.  The  notion  of  such  an  assign- 
ment implied  a  contradiction,  for  the  right  would  no  longer  be 
personal.  The  only  solution  was  to  resort  to  fiction.  To  reach 
the  debtor,  the  assignee  had  to  secure  from  the  original  credi- 
tor a  "procuratio  in  rem  suam."  The  original  creditor  thus  re- 
mained such  in  law  and  was  regarded  as  the  plaintiff.  Another 
method  was  the  novation.  The  old  relation  was  destroyed  and  a 
new  one  established.  But  in  this  the  consent  of  the  debtor  was 
necessary. 

To  reinforce  the  solvency  of  the  debtor  was  no  less  necessary 
from  the  practical  point  of  view.  The  owner  is  owner  both  in 
fact  and  in  law ;  but  a  creditor  risks  being  a  creditor  merely  in  law. 
Unless  the  law  departed  from  the  sphere  of  personal  rights,  the 
creditor's  right  had  to  be  strengthened  by  another  similar  right, 
that  is  to  say,  by  several  joint  debtors,  or  at  least  a  debtor  and  one 
or  more  sureties.  Today  the  surety  is  still  frequently  employed, 
at  least  as  a  legal  exaction,  for  the  purely  conventional  surety 
has  become  rather  rare.  In  the  beginning  suretyship  seemed  very 
natural  because  of  family  solidarity ;  it  was  merely  the  extension 
of  family  obligations  to  relationships  beyond,  and  to  strangers. 
Cosureties  were  met  with  frequently;  they  originated  from  the 
same  principle  as  the  compurgators  of  procedural  law. 

Thus  reinforced  the  purely  personal  right  acquired  a  certain 
vigor,  which  it  long  retained.  It  presupposed  a  certain  confidence 
and  a  relatively  simple  state  of  society. 

The  creditor  finally  succeeded  in  transferring  his  right  directly 
without  the  debtor's  consent;  but  the  reciprocal  debt  remained 
untransferable   by   the   debtor   under   most   law.     The   present 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  625 

German  Code  has,  however,  introduced  the  rather  abstract  con- 
ception of  the  "  assignment  of  a  debt." 

But  at  the  present  time  especially,  the  personal  right  is  giving 
away  before  a  kind  of  return  towards  the  real  right,  not  as  source, 
but  as  security.  Real  guaranties  have  taken  the  place  of  personal 
guaranties,  especially  in  the  civil  law.  The  latter  have  endured 
longer  in  commercial  law. 

Civil  credit  found  a  more  solid  basis  in  the  hypothec,  especially 
since  the  amendment  of  the  hypothecary  system ;  commercial 
credit  found  its  surest  support  in  the  pledge.  Many  kinds  of 
property  have  been  made  susceptible  of  hypothec  which  were 
not  originally :  vessels,  for  example,  and  merchandise  deposited 
in  a  general  warehouse.  The  commercial  warehouse  receipt 
was  the  forerunner  of  the  farmer's  warehouse  receipt.^  Distances 
have  been  effaced ;  personal  credit  counts  for  less ;  good  faith  is 
rarer  or  more  suspect.  It  is  certain  that  the  confidence  once 
sought  in  personal  solvency  and  above  all  in  group  solvency  is 
now  found  in  property,  so  that  in  a  certain  sense  there  has  been 
a  reversion  to  the  right  '*  in  rem."  So  far  has  evolution  gone  in 
this  direction  that  we  now  have  the  land  charge,  an  instrument 
highly  typical  in  the  sense  that  all  personal  obligation  has  been 
eliminated.  Ordinarily  the  real  guaranty  supports  the  personal 
obligation.  In  this  case  it  replaces  it.  If  the  pledged  property 
is  insufficient,  no  right  exists  against  the  debtor  for  the  balance. 
This  is  understood  in  the  creation  of  the  right. 

The  spiral  turn  of  the  evolution  is  again  evident,  —  from  the 
right  "  in  rem  "  to  the  right  ''  in  personam  "  and  return,  though 
the  real  right  today  is  distinct  from  its  original. 

§  18.  From  a  Law  of  Nominate  Relations  to  a  Law  of  Innominate 
Relations.  This  movement  concerns,  besides  the  form  or  external 
appearance  of  the  right,  the  mode  of  creation  and  of  transfer. 

At  first  all  rights  were  nominate  whether  they  were  over  things 
or  persons ;  that  is  to  say,  the  party  entitled  was  designated  and 
could  not  be  replaced  by  another.  It  was  the  strict  state  of 
positive  law,  which  we  described  in  the  preceding  section.  In 
the  case  of  the  so-called  right  ''  in  personam  "  or  obligation,  it 
was  so  personal  that  it  was  untransferable  except  by  the  fiction 
of  the  "  procuratio  in  rem  suam."  All  the  instruments  evidencing 
these  rights  named  the  party  entitled,  the  object  and  the  debtor, 
if  there  was  one. 

Then  this  feature  which  was  so  marked  began  to  change,  and 
1  [France,  Law  of  April  30,  1906.  —  Translator.]- 


626  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

impersonality,  that  is  to  say,  the  avoidance  of  names,  gradually 
affected  the  different  elements  of  the  right :  creditor,  debtor,  and 
object.  It  was  above  all  commercial  law  which  rendered  the 
change  necessary  and  realized  it. 

Already  novation  had  effected  a  transfer,  one  after  the  other, 
of  each  element  of  an  obligation  :  now  the  debtor,  now  the  creditor, 
and  now  the  object.  But  these  elements  though  altered  were  yet 
determinate  at  every  moment.  In  the  contracts  we  are  about 
to  examine  they  could  only  be  determined  at  the  moment  when 
the  right  fell  due  and  was  discharged. 

Impersonality  of  object  consisted  in  its  being  fungible.  Pre- 
viously this  quality  had  existed  only  where  the  right  was  to  a  sum 
of  money  or  to  objects  which  by  nature  were  consumed  by  use 
and  so  were  regarded  as  convertible  "  ex  post  facto  "  into  money 
value.  In  any  other  case  the  promisee  might  demand  the  un- 
altered object ;  a  subrogation  was  not  easily  accomplished.  There 
are  still  today  certain  objects  which  possess  a  value  in  themselves 
by  association,  and  which  we  would  not  surrender  for  double 
their  intrinsic  worth.  Such  are  personal  souvenirs,  portraits,  or 
family  furniture.  More  rarely  they  are  land,  as  a  particular 
country  estate  where  our  parents  lived,  or  where  we  were  born, 
or  have  always  lived.  Such  affection  has  become  rarer,  but  it  is 
very  often  met  with.  The  inanimate  object  is  endowed  with  a 
personality  borrowed  from  its  owner. 

The  personality  of  the  object  is  disappearing  more  and  more. 
The  spirit  of  commercialism  dealt  the  first  blow;  the  narrowing 
of  the  family  group  a  second,  and  finally  contemporary  financial 
methods  have  almost  destroyed  it.  An  object  merely  represents 
a  value ;  everything  which  has  a  fairly  determinable  price  is  fun- 
gible. If  a  man  is  wealthy,  what  does  it  matter  whether  he  pos- 
sesses one  or  another  class  of  riches,  provided  that  his  revenue  is 
the  same  and  that  both  are  equally  secure  ?  Fungibility  is  the 
normal  quality  today,  and  to  be  fungible  is  in  reality  to  be  nominate. 

In  turn  the  impersonality  of  the  debtor  has  become  the  rule; 
at  least,  if  he  is  known,  he  is  not  considered.  There  was  a  time 
(it  is  still  sometimes  the  practice  among  the  peasant  class)  when  I 
would  loan  often  without  security  to  some  one  whom  I  knew,  by 
reason  of  my  confidence  in  him.  I  would  not  have  loaned  to 
another.  Even  in  the  case  of  the  hypothec  I  was  careful  not  to 
deal  with  a  dishonest  or  uncongenial  debtor.  I  sought  out  my 
prospective  debtor  directly.  If  a  notary  played  any  part  in  the 
transaction*,  he  did  so  merely  to  execute  the  necessary  formalities. 


Chap.   XX V]  THE   EVOLUTION   OF   CIVIL   LAW  627 

If  collateral  were  pledged,  it  was  a  mere  complementary  transac- 
tion. Today  it  is  the  principal  act.  I  apply  to  a  broker  who 
promises  me  a  hypothec  of  a  certain  value,  without  mentioning 
to  me  even  the  name  of  the  borrower.  It  is  the  broker,  generally 
a  notary,  who  collects  the  interest  or  even  pays  it  in  anticipation. 
The  personality  of  the  debtor  no  longer  figures  in  the  considera- 
tion. Of  course  his  name  is  known,  since  I  have  the  deed  in  my 
hand  ;  but  I  have  not  read  it. 

The  identity  of  the  debtor  may  be  still  further  obliterated. 
Of  course  he  exists  but  I  may  never  know  him.  I  shall  never  know, 
except  as  a  fiction,  the  immensely  powerful  personality  who  comes 
between  the  debtor  and  myself.  Thus,  continuing  the  example 
of  the  loan,  the  notary  is  dispensed  with  and  I  deal  with  a  mort- 
gage bank  (the  *'  Credit  Foncier  ",  for  example). 

The  bank  alone  will  be  directly  my  debtor.  Now  the  bank 
is  a  stock  company  and  in  the  highest  degree  anonymous.  Masked 
behind  the  bank  there  is,  no  doubt,  a  person  of  flesh  and  bone  who 
has  received  the  loan  and  who  pays  me  the  interest.  But  to  this 
person  I,  too,  am  unknown.  I  do  not  exist  for  him  or  he  for  me. 
No  one  now  appears  at  either  end  of  the  obligation. 

More  than  this,  the  company  or  mortgage  bank  which  inter- 
venes between  my  debtor  and  myself  is  not  a  real  person.  It  is 
a  mass  of  capital  which  has  acquired  a  metaphysical  personality 
through  a  fiction.  It  does  not  even  represent  physical  persons 
who  lie  concealed  beneath  the  fiction.  There  is  only  capital,  and 
even  that  is  limited  to  sums  subscribed  by  unknown  persons  who 
receive  the  profits  and  who  probably  will  never  demand  back  their 
capital. 

By  yet  another  method  the  debtor  has  become  more  really  im- 
personal. In  this  instance  the  borrower  owes  me  nothing,  I  have 
no  claim  upon  him.  He  has  substituted  for  the  debt  a  piece  of 
land ;  and  it  is  to  this  that  I  must  turn  for  satisfaction.  If  it 
proves  insufficient,  I  have  lost  the  balance  ;  I  may  not  come  against 
the  debtor.     Such  is  the  German  land  charge  ("  Grundschuld  "). 

Now  we  reach  the  culminating  point  of  the  evolution.  The 
creditor  in  turn  may  become  quite  anon^Tnous.  At  first  the 
debtor  knew  his  creditor  and  this  was  an  important  factor  to  him. 
Might  he  not  perhaps  desire  an  extension  of  his  debt  with  regard 
to  interest  or  capital?  Indeed,  the  creditor  has  been  often  in- 
convenienced in  this  way.  To  the  merchant  such  a  postponement 
was  still  more  annoying,  for  he  too  might  be  a  debtor  and  if  his 
debtor  defaulted,  how  was  he  to  meet  his  debts  ?    There  was  of 


628  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

course  one  means  of  meeting  such  a  situation.  He  could  assign 
the  debt.  But.  we  know  how  difficult  such  an  assignment  was  at 
first.  And  that  difficulty  has  not  been  quite  rid  of  yet.  A  deed 
of  assignment  must  be  drawn,  notice  by  a  judicial  officer  given  to 
the  debtor;  and  finally,  if  the  debt  is  secured  by  hypothec,  it 
must  be  noted  in  the  assignment.  Moreover,  the  expense  is 
considerable.  The  consequence  was  that  people  refused  to  loan, 
and  credit  was  impaired.  To  remedy  this  there  was  but  one 
method :  impersonalize  credit  and  so  minimize  formality.  The 
debtor  promised  to  pay  the  original  creditor  or  any  assignee  sub- 
sequently named  upon  the  instrument  who  might  present  it.  So 
the  negotiable  instrument  was  reached.  We  are  not  concerned 
here  with  its  utility  but  merely  with  its  semi-impersonality.  With 
such  an  instrument  the  creditor  no  longer  dreaded  the  importu- 
nities of  his  debtor. 

But  the  impersonality  of  the  creditor's  right  may  be  still  more 
absolute.  In  the  negotiable  instrument  issued  to  the  payee  of 
order,  the  debtor,  it  is  true,  pays  to  the  ultimate  creditor.  But 
the  latter  is  obliged  to  exhibit  regular  endorsements  upon  the 
instrument;  he  may  encounter  an  irregular  endorsement  or  a 
forgery.  It  seemed  advisable  to  suppress  this  last  restriction  of 
the  clause  "  or  order."  The  result  was  the  instrument  payable 
to  bearer.  Such  an  instrument  may  even  be  in  the  form  of  a  land 
charge.^  The  obligation  to  bearer  has  been  the  object  of  much 
theoretical  study,  into  which  we  will  not  enter  here.  It  has  been 
held  to  be  an  instance  of  a  purely  unilateral  consent  which  is 
nevertheless  binding. 

If  the  debtor  is  a  stock  company  and  the  sum  is  made  payable  to 
bearer,  it  is  possible  for  both  creditor  and  debtor  to  be  impersonal. 

Thus  across  the  centuries  may  we  trace  the  evolution  of  each 
of  the  elements  of  a  right :  creditor,  debtor,  object.  Describing 
a  curve  from  the  personal  to  the  impersonal  successively  in  each 
case,  we  reach  a  point  where  these  elements  are  in  the  highest 
sense  innominate. 

The  last  factor  of  a  right  which  has  not  escaped  the  change  is 
the  "  cause  ",  technically  speaking,  the  "  causa  civilis  ",  or  gen- 
erative element.     Every  right  must  have  a  "  cause  "  and  positive 

1  [German  Civil  Code,  Art.  1195.  "A  land  charge  may  be  granted  in 
such  a  manner  that  the  certificate  of  land  charge  is  drawn  to  bearer. 
The  provisions  relating  to  obligation  to  bearer  apply  'mutatis  mutandis' 
to  such  certificate."  Cf.  trans,  by  Wang,  London,  1907;  cj.  also,  "Col- 
lection des  principaux  codes  etrangers;  Code  Civil  allemand"  (Paris, 
1906),  Vol.  II,  Art.  1195  and  note.  —  Translator.] 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  629 

law  frequently  even  requires  that  it  be  expressed.  French  civil 
law  dispenses  with  its  mention  in  bills  of  exchange ;  its  existence 
is  presumed.  In  the  promissory  note  to  order  the  cause  is  ex- 
pressed ;  but  it  is  a  pure  formality  and  always  of  the  most  general 
character  :  as  "  value  received  ",  etc.  It  is  very  vague  and  finally 
in  the  promissory  note  payable  to  bearer  it  is  suppressed  altogether. 
P^nglish  law  has  constructed  out  of  *'  cause  "  the  special  doctrine 
of  consideration.  Under  this  doctrine  every  contract  must  have 
a  "  justa  causa  "  which  must  be  proved.  The  ''  causa  "  consists 
of  either  a  reciprocal  promise  or  act.  But  the  ''  causa  "  may 
in  its  turn  be  innominate,  that  is,  unexpressed  and  unknown  in 
the  formal  contract  under  seal  or  the  deed. 

§  19.  From  Concrete  to  Abstract  Rights.  We  already  touched 
upon  this  subject  when  we  traced  the  toilsome  evolution  from  the 
right  **  in  rem  "  to  the  right  ''  in  personam."  We  have  seen  how 
the  right  **  in  rem  ",  when  qualified  by  an  auxiliary  ''  fiducia  " 
clause  took  the  place  of  a  personal  obligation;  for  example,  in 
the  Roman  law.  This  same  clause  also  served  to  create  an 
abstract,  that  is,  a  right  touching  only  a  partial  use  of  the  thing, 
for  example,  the  English  mortgage  w^here  the  mortgagee  is  the  full 
owner  subject  to  reconvey. 

We  must  first  recall  what  is  meant  by  an  abstract  as  opposed 
to  a  concrete  right.  A  concrete  right  is  a  right  over  the  object 
itself,  including  all  its  uses  without  exception.  The  right  then 
shapes  itself,  as  it  were,  to  its  possessor ;  land  and  owner  are  but 
one.  But  a  day  comes  when  the  owner  grants  the  usufruct  of 
his  land  to  another,  thereby  depriving  himself  of  all  uses  for  the 
time  being.  His  right  has  become  abstract  from  two  points  of 
view :  the  object  no  longer  appears  entire,  but  to  each  claimant 
belongs  a  special  right.  Again,  one  person  is  owner  presently  for 
a  certain  period,  another  is  owner  in  the  future  only,  after  expira- 
tion of  the  period.  The  bare  title  is  an  abstract  right;  so  is  the 
usufruct;  a  merger  of  the  two  would  reunite  the  parts,  and  re- 
establish the  concrete  right. 

The  human  mind  has  a  hate  for  the  abstract  and  long  refused 
to  proceed  in  this  manner.  It  guarded  the  concrete  even  while 
definitely  aiming  to  obtain  an  abstract  result.  The  owner  did 
not  give  the  pledgee  a  partial  or  dismembered  right.  He  preferred 
to  assign  the  whole.  The  pledgee  became  absolute  owner ;  only, 
upon  delivery  of  the  pledged  property,  certain  conditions  were 
attached  to  it,  the  "  pacta  adjecta."  The  creditor  promised  to 
retransfer  upon  discharge  of  the  debt.     This  was  the  "  fiducia  " 


630  PKOCESS   OF   LEGAL  EVOLUTION  [Part  III. 

clause.  We ,  have  seen  how  In  the  English  mortgage  this  was 
exactly  the  method  followed.  It  was  not  till  later  that  the  debtor 
remained  owner  and  created  an  abstract  right  in  his  property, 
after  the  conception  of  such  an  abstraction  had  finally  ripened. 

It  was  not  merely  before  the  idea  of  dismembering  ownership 
that  the  mind  recoiled.  It  could  not  comprehend  a  legal  effect 
to  endure  until  a  certain  date  only.  It  had  to  continue  forever. 
This  limitation  was  the  origin  of  that  remarkable  rule  of  the  Roman 
law  that  a  temporary  real  or  personal  right  could  not  be  created 
because  such  a  right  was  purely  ideal  or  abstract.  The  Roman's 
only  conception  of  oneness  or  concreteness  was  to  be  owner  in- 
definitely or  creditor  until  payment.  During  the  classical  period 
and  even  up  to  Diocletian,  any  alienation  for  a  specific  period  was 
void,  even  though  such  a  limitation  was  stricken  out.  It  was 
only  allowable  to  employ  the  *'  fiducia  "  clause  which  obligated 
the  creditor  after  a  certain  time  to  reconvey  the  property.  On 
the  other  hand  property  might  be  transferred  after  the  expiration 
of  a  period  of  time.  In  the  same  way  servitudes  could  not  be 
granted  for  a  certain  period.  The  usufruct  alone  constituted  an 
exception,  being  temporary  by  definition.  For  the  same  reasons 
a  right  "  in  personam  "  could  not  be  subject  to  a  condition  sub- 
sequent or  to  expire  at  the  end  of  a  fixed  time.  The  civil  law 
ignored  the  condition  and  the  obligation  became  absolute.  By 
way  of  exception  it  was  admissible  in  sale  and  the  other  consensual 
contracts,  but  upon  the  condition  that  it  affected  both  sides  of 
the  contract  and  not  merely  one.  The  nullity  of  an  extinctive 
period  was  recognized  even  in  contracts  '^  bonae  fidei  negotia.'* 
In  the  "  stipulatio  "  the  contract  was  held  to  be  unconditional. 

These  principles  received  an  application  in  the  deferring  of 
heirship.  It  was  not  permitted  to  institute  an  heir  for  a  certain 
time  only,  or  to  divide  the  mheritance.  '^  Semel  heres,  semper 
heres.''  Nor  could  a  decedent  have  successively  an  heir  at  law 
and  a  testamentary  heir;  nor,  what  amounts  to  the  same  thing, 
might  a  testamentary  heir  be  instituted  "  ex  die."  The  institu- 
tion was  not  void  but  the  period  was  suppressed  in  both  cases. 
By  extension  of  reasoning  it  was  impossible  to  die  testate  as  to 
one  part  and  intestate  as  to  another  part  of  one's  estate. 

A  servitude  also  could  not  be  granted  for  a  limited  term  because 
the  servitude  was  perpetual  like  ownership  itself.  Only,  whereas 
the  fixing  of  a  term  rendered  the  servitude  void,  in  the  case  of 
ownership  such  a  condition  was  simply  ignored.  The  difference 
arose  from  the  fact  that  the  servitude  might  in  the  nature  of  things 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  631 

be  extinguished.  A  legacy  of  a  servitude  to  take  effect  at  a 
future  date  was  good.  But  such  a  limitation  in  the  ''  mancipatio  ", 
the  "  in  jure  cessio  "  or  the  adjudication  of  a  servitude  rendered 
the  whole  agreement  void. 

Indeed  these  last  forms  of  legal  acts  did  not  admit  at  all  of  a 
condition  precedent  or  a  term  ''a  quo",  at  least  unless  tacit. 
The  reason  seems  to  have  lain  in  the  formula  by  which  the  trans- 
feree affirmed  a  positive  and  present  right.  It  would  seem  that 
it  was  a  mere  accident  of  procedure. 

Thus  we  see  that  the  general  spirit  of  Roman  law  was  repugnant 
not  only  to  the  abstract  idea  of  the  dismemberment  of  ownership 
(attaining  the  same  results  only  by  indirect  means),  but  also  to 
that  other  abstract  conception  of  a  temporary  or  deferred  owner- 
ship. In  the  same  way  it  rejected  the  conception  of  a  personal 
right  upon  these  conditions.  It  demanded  instant  transfer,  con- 
crete and  entire ;  however,  there  might  be  a  "  fiducia  "  clause, 
that  is  to  say,  collateral  obligation  to  reconvey  the  property  even- 
tually. In  that  way  the  right  remained  stable  and  whole,  and 
the  love  of  the  juridical  mind  for  concrete  conceptions  w^as  not 
shocked. 

English  law  felt  the  same  influence,  but  it  seems  to  have  led 
to  very  opposite  results. 

We  have  seen  that  English  law  followed  the  principles  of  Roman 
law  with  regard  to  the  dismemberment  of  the  hypothec  and  that 
the  title  itself  was  conveyed  subject  to  a  "  fiducia  "  clause  of 
defeasance.  But  when  it  came  to  the  equivalent  of  the  Roman 
usufruct  the  English  law  was  quite  different.  It  treated  the 
right,  at  least  as  to  its  form,  as  if  it  were  perpetual.  It  was  not 
a  real  usufruct  but  only  a  temporary  ownership  quite  analogous 
to  the  right  of  the  first  tenant  of  a  trust  entail.  It  was  a  special 
form  of  tenure  for  life.  It  did  not  produce  a  mere  dismemberment 
of  the  property  right  but  a  full  though  temporary  title.  The  ''  bare 
title  "  really  has  no  existence  in  English  law,  nor  is  the  French 
usufruct  found  there  any  more  than  the  hypothec.  The  English 
system  rejected  the  idea  of  the  dismemberment  of  the  right  of 
ownership,  and,  differing  from  the  Roman  law,  held  to  the  prin- 
ciple of  the  undismembered  and  integral  right,  the  concrete  right. 

French  law  possessed  something  analogous.  While  admitting 
the  principle  of  the  dismemberment  of  a  right,  it  did  not  allow  in 
the  trust  entail  ("  substitution  fideicommissaire  ")  the  distinction 
between  the  bare  and  the  usufructuary  title.  Yet  it  would  have 
been  very  simple  to  have  converted  the  right  of  the  grantee  of  the 


632  PROCESS    OF    LEGAL   EVOLUTION  [Part   III. 

prior  estate  into  a  simple  usufruct  and  that  of  the  remainderman 
or  '*  person  called  "  into  the  bare  title.  The  principle  of  the 
concrete  right  was  deemed  preferable.  The  usufruct  and  trust 
entail  are  so  alike  that  we  find  the  French  Courts  have  upheld 
entails  though  prohibited  by  law,  by  regarding  them  as  usufructs. 

Such  are  the  traces  left  by  the  old  domination  of  the  concrete 
right.  The  idea  of  its  absolute  necessity  has  generally  disappeared. 
It  is  usual  today  to  dismember  ownership ;  the  usufruct  and  the 
hypothec  are  very  general.  The  respective  twofold  situations 
of  the  bare  and  usufructuary  title  are  very  frequently  met  with. 
However,  we  saw  in  an  earlier  chapter  that  the  situation  presents 
serious  practical  disadvantages.  Cultivation  of  the  land  is  neg- 
lected ;  numerous  conflicts  arise.  The  advantage  of  the  dis- 
memberment is  extremely  small  and  as  a  consequence  of  it  the 
land  brings  a  low  price.  All  this  justifies  the  soundness  of  the 
early  repugnance  to  dismembered  rights.  Ownership  should  be 
one  and  perpetual,  without  prejudice  to  the  free  right  of  transfer, 
which  assures  its  greatest  usefulness. 

There  was,  however,  a  kind  of  dismemberment  which  seems  to 
contradict  the  evolution  which  we  have  just  described.  The  so- 
called  ''  dominium  directum  "  as  opposed  to  the  ''  dominium 
utile  "  was  a  different  distinction  from  that  between  the  bare  title 
and  the  usufruct,  or  that  implied  in  a  temporary  ownership.  It 
is  inconsistent  with  evolution  in  that  it  existed  above  all  in  the 
early  period  of  law  and  disappears  in  the  modern  stages. 

This  apparent  anomaly  vanishes  under  observation.  The 
''  dominium  utile  "  was  a  full  ownership  granted  by  the  ultimate 
title  holder,  subject  to  a  "  fiducia  "  clause  obliging  a  reconveyance 
in  specified  cases,  such  as  those  justifying  a  forfeiture  of  tenure. 

§  20.  From  Immediate  to  Deferred  Rights.  This  evolution 
approaches  very  close  to  one  which  we  have  already  studied  in 
part;  for  the  whole  of  evolution  is  interrelated. 

The  first  mode  of  carrying  on  commerce  was  by  barter.  Neither 
promise  nor  credit  was  known.  Men  gave  with  one  hand  and 
received  with  the  other,  and  an  exchange  involved  a  transfer  of 
ownership,  when  the  transaction  concerned  a  movable.  This 
process  was  originally  the  same  everywhere. 

In  some  countries,  where  other  institutions  helped  to  reinforce 
it,  it  was  of  longer  duration  and  remained  very  rigid.  Thus  in 
Roman  law  by  an  analogy  of  principle  it  was  not  possible  for  a 
decedent  to  be  testate  after  having  been  intestate  for  a  period.  In 
instituting  an  heir,  a  will  had  to  produce  its  effect  instantly  upon 


Chap.    XXV.]  THE    EVOLUTION    OF   CIVIL    LAW  633 

the  death  of  the  testator.  In  the  same  way  ownership  could  not 
rest  in  abeyance.  Obviously  there  were  particular  reasons  why 
the  "  mancipatio  "  and  the  "  in  jure  cessio  "  had  to  take  effect 
immediately,  since  the  transferee  affirmed  a  present  right. 

Furthermore  when  time  enters  as  an  element  of  a  transaction, 
there  must  be  a  certain  amount  of  confidence  and  guaranty,  and 
these  could  not  exist  in  a  weak  state  of  civilization. 

But  trade  is  built  up  essentially  upon  time  as  an  element  of  a 
transaction;  time  is  its  very  soul.  By  definition  trade  implies 
payment  only  when  the  object  dealt  in  has  been  sold.  The 
supreme  importance  of  time  in  commercial  relations  gave  rise  to 
contracts  or  instruments  of  a  special  nature  :  the  promissory  note 
and  the  bill  of  exchange ;  and  where  the  transport  of  money  from 
place  to  place  did  not  enter,  the  check.  Usage  even  has  set  the 
ordinary  periods,  and  these  lengthen  with  the  extension  of  con- 
:fidence  and  business  activity.  The  periods  may  be  renewed  and 
these  renewals  are  a  source  of  profit  to  banks. 

Finance  has  gone  beyond  commerce  and  has  laid  even  greater 
emphasis  upon  the  importance  and  use  of  so-called  time  transac- 
tions upon  the  e*xchange.  The  extension  of  these  periods  by  carry- 
ing over  accounts  to  the  next  day  of  settlement  is  one  of  the  most 
essential  elements  in  speculation,  which  is  the  force  stimulating 
all  classes  of  enterprise.  The  condition  of  the  sale  and  purchase 
is  thus  reduced  to  a  single  one  of  provision  for  the  future. 

There  were  periods  when  measures,  intended  to  repress  usury, 
checked  the  development  of  the  time  agreement  by  limiting  credit. 
But  this  restraint  finally  disappeared.  A  similar  restriction  was 
created  by  the  law  prohibiting  mere  paper  operations  on  the  ex- 
change. But  in  its  turn  even  this  obstacle  has  been  removed  and 
the  element  of  time  is  strengthened  more  and  more. 

Then  there  are  institutions  (like  the  '*  Credit  Foncier  "  of  France) 
where  operations  are  carried  on  by  amortizing  their  loans,  grant- 
ing very  long  terms  to  the  debtor.  Life  insurance  is  contracted 
for  long  periods,  as  also  life  annuities.  Savings  and  benefit  socie- 
ties are  extending  more  and  more  the  period  between  the  date 
of  the  contract  and  the  time  when  it  is  productive  of  effect. 

§  21 .  From  Gratuitous  to  Commutative  and  Aleatory  Trans- 
actions. An  evolution  analogous  along  certain  lines  to  the  pre- 
ceding has  occurred  especially  in  the  change  from  the  commu- 
tative to  the  aleatory  contract,  that  is  to  say,  from  the  agreement 
demanding  a  certain  equality  of  consideration  to  that  contem- 
plating a  profit  arising  out  of  a  risk.     But  this  movement  was 


634  PROCESS    OF   LEGAL   EVOLUTION  [Pabt   III. 

preceded  by  a  period  when  it  was  not  the  aim  to  wring  from  a 
contract  all  possible  benefit  or  even  any  benefit  at  all. 

The  gratuitous  or  benevolent  contract,  which  should  seem  to 
be  the  final  form,  on  the  contrary  came  first.  It  was  the  time  when 
the  exchange  value  of  objects  was  small,  less  than  their  use  value. 
The  stage  of  absolute  benevolence  was  no  doubt  always  a  rare 
one ;  donations  were  only  made  to  children  or  members  of  the 
family,  and  we  are  not  now  dealing  with  the  will.  However,  in 
the  first  place,  the  purpose  of  a  sale  was  not  to  procure  the  highest 
possible  price,  and  secondly,  the  preferential  right  of  the  family 
to  redeem  the  thing  set  limits  to  the  price.  In  this  sense  the 
object  did  not  belong  exclusively  to  the  individual;  it  still  be- 
longed to  a  certain  extent  to  the  entire  family. 

In  primitive  times  sale  was  rare.  It  took  place  only  for  impor- 
tant reasons,  and  these  were  not  profit  making  but  to  extricate 
a  debtor  from  an  embarrassment.  Even  today  the  person  who 
sells  his  belongings  undoubtedly  creates  an  unfavorable  public 
impression.  Generally  on  such  occasions  it  is  the  purchaser  who 
profits.  The  vendor  does  not  receive  full  value,  much  less  if  he 
endeavors  to  conceal  the  sale  or  if  he  sells  within  "his  family. 

For  these  reasons  many  systems  of  law  accord  the  seller  a  right 
to  retract  during  a  certain  period.  Where  such  a  stipulation  is 
expressed,  it  is  the  right  of  redemption  (remere).  It  has  almost 
disappeared,  but  it  once  enjoyed  great  usefulness  in  every  country. 
An  express  stipulation  was  not  always  necessary. 

Contracts  which  unsettled  the  normal  and  fixed  conditions  seemed 
unnatural.  The  right  to  retract  one's  decision  was  so  customary 
that  it  was  fixed  by  earnest  money,  which  is  merely  liquidated 
damages  for  revocation  of  an  unexecuted  agreement.  Thus 
evolution  passed  to  the  commutative  transactions  which  marked 
the  second  phase,  for  the  right  of  retraction  was  a  corrective  of 
the  sacrifice  involved  in  the  quasi-gift,  which  was  necessarily 
the  character  of  sale  at  first. 

The  right  to  retract  was  granted  to  both  purchaser  and  seller 
in  certain  primitive  systems,  and  it  was  extended  to  all  forms  of 
contract.  In  Moslem  law  sale,  gift,  bailment  for  use,  partnership, 
agency,  bailment  for  safe  keeping,  and  marriage  were  revocable 
at  the  pleasure  of  one  of  the  parties  during  a  certain  period  which 
was  gradually  shortened.  The  Code  of  Manu  gave  ten  days 
to  the  p,urchaser  and  the  seller. 

Later  the  contract  stiffened.  However,  the  effort  to  maintain 
the  rigorously  commutative  quality  continued  in  two  ways.     First 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  635 

an  action  was  given  to  rescind  the  contract  for  inequitable  con- 
sideration (lesion).  This  is  recognized  in  present  French  law: 
(a)  in  sale,  (b)  partition,  (c)  all  contracts  to  which  minors  are 
parties.  Second,  the  rate  of  interest  was  limited  in  both  civil  and 
commercial  transactions  in  order  to  prevent  a  fresh  injury  of  the 
same  sort. 

The  commutative  stage  in  the  evolution  was  not  the  last.  By 
degrees  this  class  of  transactions  was  freed  frcm  the  impediments 
which  fettered  it  and  which  aimed  to  render  it  absc  lutely  commu- 
tative. PVeedom  of  action  was  no  longer  hampered  by  the  rule 
that  it  was  necessary  to  receive  about  the  equivalent  of  what  one 
gave,  without  risk,  gain  or  loss.  Mercantile  practice  led  people 
to  believe  that  the  main  end  was  large  profits,  even  though  coupled 
with  risk.    This  was  the  system  of  the  aleatory  contract. 

It  is  a  very  frequent  form  and  there  are  many  forms  which  are 
not  prohibited,  which,  indeed,  on  the  contrary,  are  encouraged. 
Of  this  latter  class  are  the  difi'erent  kinds  of  insurance.  Materially 
their  purpose  is  to  prevent  the  individual  from  falling  frcm  an 
existing  economic  position.  To  this  end,  a  portion  of  the  annual 
income  is  set  aside.  No  purpose  could  be  more  moral ;  it  is  in  the 
interest  of  conservation ;  speculation  does  not  enter  into  it.  And 
yet  there  is  undoubtedly  the  element  of  risk,  for  in  certain  events 
the  economy  will  have  been  in  vain. 

Commercial  risk  is  yet  greater.  An  entire  fortune  may  be  lost 
without  acting  adventurously,  because  profit  does  not  recom- 
pense work  alone,  but  often  flows  from  mere  foresight  or  chance. 
^Maritime  trade  is  yet  more  aleatory.  When  a  loan  is  made  for  such 
a  purpose  it  is  tei  med  a  maritime  venture  (respondentia  or  bottomry 
bond),  though  it  is  a  real  speculation  in  merchandise.  Ordinarily 
the  profit  still  arises  out  of  increased  charges  of  transportation  or 
of  retailing  the  merchandise ;  the  risk  is  accessory  and  covered 
indirectly. 

This  is  not  the  pure  aleatory  contract.  That  results  primarily 
from  speculation.  For  example,  I  purchase  with  a  view  to  resale ; 
I  buy  more  than  I  can  sell  at  once  and  I  have  no  idea  when  I  will 
be  able  to  resell  at  a  profitable  price.  Perhaps  I  will  not  be  able  to 
sell  except  at  a  loss.     This  is  speculation. 

But  evolution  has  carried  the  law  further.  For  example,  I  buy 
more  than  I  can  pay  for.  I  hope  to  be  able  to  discharge  my  obliga- 
tion as  soon  as  a  profitable  sale  can  be  effected.  But  perhaps  that 
will  never  be.  I  can  secure  my  discharge,  without  delivery,  by 
paying  the  difference,  which  may  be  enormous.     This  may  mean 


636  PROCESS    OF    LEGAL   EVOLUTION  [Part   III. 

absolute  ruin,  perhaps  I  shall  even  cause  a  great  loss  to  my  vendor. 
We  have  now  passed  beyond  speculation  to  the  gambling  stage. 

Sometimes  a  contract  may  be  frankly  a  wager,  as  when  I  gamble 
upon  horse  races.  I  play  some  game  of  chance,  putting  up  my 
money,  or  promising  to  pay.  When  this  degree  cf  risk  is  reached, 
the  law  may  come  to  my  rescue,  giving  me  a  defense  that  the  con- 
tract was  a  garnbling  debt.  Sometimes,  as  in  France  to-day,  I 
am  deprived  of  this  defense  when  the  contract  is  one  of  stock 
gambling.  The  struggle  towards  the  aleatory  has  then  finally 
broken  all  its  restraints.  Such  is  the  actual  stage  of  the  evolution. 
We  have  won  a  complete  freedom  to  ruin  ourselves.  Far,  indeed, 
has  been  the  road  from  the  vendor's  right  of  redemption  and  the 
family  right  of  repurchase  of  alienated  property ! 

§  22.  From  Legal  Regulation  to  Liberty  of  Contract.  We 
have  just  indicated  some  of  the  restrictions  relating  to  equality 
of  consideration  of  a  contract.  There  were  many  others.  The 
defenses  which  the  law  set  up  were  founded  upon  many  motives, 
and  for  a  long  while  they  were  very  numerous.  At  the  very  begin- 
ning, it  is  true,  interference  was  rare.  But  that  was  only  for  a 
theoretical  moment.  Customary  law  soon  came  to  furnish  defenses 
of  a  very  imperative  nature.  Agreements  were  still  feeble  and 
found  but  narrow  fields  within  which  to  develop. 

The  restrictions  set  up  by  law  were  of  several  sorts.  Some 
were  created  in  the  interests  of  the  family,  others  of  society,  and 
others  in  the  interests  (not  always  well  understood)  of  the  in- 
dividual himself. 

The  first  class  was  directed  above  all  at  the  devolution  of  the 
inheritance.  Testamentary  devolution  was  unknown  at  first. 
Intestate  inheritance  alone  existed,  based  upon  blood  relationship 
or  the  political  composition  of  the  family,  which  admitted  of  no 
invasion  of  general  principles.  Such  everywhere  w^as  the  begin- 
ning of  this  phase  of  the  law.  The  principle  "  uti  legassit  "  was 
a  later  and  secondary  one  at  Rome.  The  early  law  rigorously 
excluded  the  testament ;  it  was  also  wholly  unknown  to  Germanic 
law.  It  was  only  introduced  into  the  Germanic  system  after  the 
invasions,  through  the  Roman  and  Church  law.  There  was  no 
trace  of  it  in  the  ''Lex  Ripuaria  ",  or  in  the  law  of  the  Frisians  or 
Lombards.  It  appeared  in  the  Salic  law,  but  in  the  form  of  the 
institution  of  an  heir  before  death.  The  reappearance  of  phenom- 
ena is  always  similar  to  their  origin.  The  Revolutionary  period 
of  French  law  abolished  the  will,  so  far  as  disposing  in  benefit  of 
heirs  at  law  was  concerned,  because  of  the  fear  of  the  privilege 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  637 

of  the  eldest  born.  It  adopted  the  system  of  the  customary  law 
of  absolute  equality. 

To  refuse  to  recognize  the  right  of  disposing  by  will  was  equiv- 
alent to  prohibiting  it.  Revolutionary  law  virtually  amounted  to 
a  legal  prohibition  in  benefit  of  the  family,  or  of  the  nation.  Here 
liberty  was  practically  destroyed. 

But  from  the  earliest  phase  the  law  passed  in  almost  all  the 
nations  to  the  later  stage  of  testamentary  liberty.  At  first  it 
was  often  one  of  complete  freedom.  Thus  the  laws  of  the  Twelve 
Tables  established  the  right  without  limitation.  In  the  Middle 
Ages  people  did  not  enjoy  so  great  liberty,  but  the  will  was  intro- 
duced, though  limited  by  the  "  reserve  "  (undisposable  portion) 
of  the  customary  law,  and  by  the  compulsory  share  of  inheritance 
of  the  Roman  law.  According  to  certain  systems  the  "  reserve  " 
only  existed  when  there  were  descendants,  and  in  all  cases  the 
testator  had  the  power  to  disinherit  unworthy  children.  Under 
other  systems  the  "  reserve  "  only  included  the  property  which 
the  decedent  had  inherited  and  not  acquests  (that  acquired  by 
purchase).  The  liberty  to  dispose  by  will  was  thus  seen  to  have 
been  incomplete.  German  law  retained  a  large  "  reserve  "  in 
benefit  of  the  family  and  the  Roman  law  never  lost  it  from  view. 

However,  the  law  came  by  degrees  to  the  stage  of  complete 
freedom.  This  occurred  in  the  Anglo-American  system,  where 
the  right  to  dispose  by  will  is  not  subject  to  any  limitation,  even 
with  respect  to  children.  The  consequence  is  rendered  the  more 
serious  by  the  fact  that  the  "  marriage  portion  "  is  not  obligatory, 
or  even  in  use.  In  France  a  strong  similar  movement  is  taking 
place,  though  it  is  meeting  with  opposition.  The  complete  liberty 
of  the  father  is  ardently  advocated  and  seems  to  triumph;  at 
least  partially,  with  respect  to  the  right  of  gift  and  of  apportion- 
ment. 

But  a  third  period  is  discernible  which,  in  a  sense,  is  a  return 
to  the  first.  The  father  owes  maintenance  and  an  allowance  to 
his  descendants  even  after  he  is  dead,  above  all  when  he  dies 
possessed  of  inherited  property.  He  is  free;  the  debt  he  owes 
his  children  does  not  involve  his  entire  patrimony  or  even  a  part 
of  it,  but  an  annuity  to  maintain  them,  especially  when  they  are 
in  want.  This  has  been  recognized  by  some  of  the  later  legisla- 
tion, particularly  the  Mexican  Code,  which  borrowed  .its  system 
of  freedom  of  testamentary  power  from  the  United  States,  but 
moderated  the  rule  by  establishing  a  *'  reserve  "  in  favor  of  the 
children  consisting  merely  of  a  right  of  maintenance. 


638  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

In  the  same  way  Roman  law,  after  sanctioning  unlimited  tes- 
tamentary power  in  the  Twelve  Tables,  later  restricted  it  by  the 
"  querela  in  officiosi  testamenti  "  and  the  compulsory  share  of 
inheritance. 

Legal  restrictions  in  the  interests  of  the  family  also  included  the 
rule  of  the  inalienability  of  the  marriage  portion.  It  was  not 
found  in  primitive  law ;  it  only  existed  in  Roman  law  since  Jus- 
tinia'n.  In  customary  law  the  inalienability  of  dower  corresponded 
to  it.  Previously  the  husband  had  enjoyed  complete  liberty, 
where  the  wife  had  been  married  in  "  manus  ",  and  both  enjoyed 
it  where  the  wife  had  not  been  so  married.  The  inalienability 
of  the  marriage  portion  in  the  interests  of  the  wife  succeeded  in 
destroying  this  testamentary  liberty.  This  was  one  of  the  most 
important  of  legal  restrictions ;  it  was  fortified  by  the  Velleianum 
decree  of  the  senate. 

The  later  tendency  was  to  shake  off  this  restriction,  but  success 
was  slow.  The  marriage  portion  system  still  predominates  in  a 
part  of  France.  But  its  consequences  are  eluded  either  by  notarial 
or  judicial  practice.  The  power  to  sell  the  marriage  portion  upon 
condition  that  the  proceeds  be  reinvested  is  being  more  and  more 
frequently  stipulated ;  the  courts  appear  to  incline  more  and  more 
toward  alienation.  By  a  gradual  process  of  undermining,  this 
very  generally  condemned  regime  is  disappearing  and  liberty  of 
contract  is  being  restored. 

Another  restriction  in  benefit  of  the  family  arose  from  custom, 
namely,  the  different  feudal  rights  of  repurchase,  as  of  an  alienated 
inheritance  redeemed  by  relatives  of  the  deceased  ("lignagers  ")» 
etc.  They  are  things  of  the  past,  but  they  have  left  a  few  feeble 
traces  today  in  the  repurchase  by  a  co-heir. 

We  now  come  to  a  group  of  restrictions  created  in  the  interests 
of  the  individual.  He  is  protected  against  himself.  At  first  no 
precaution  of  any  kind  was  taken  with  this  object.  The  minor 
was  not  placed  under  a  guardian;  the  law  merely  declared  him 
without  capacity  until  the  age  of  puberty ;  it  was  silent  as  to  the 
insane.  Later,  protective  measures  were  introduced  and  the  first 
of  these  was  to  allow  proof  in  fact  of  incapacity.  As  to  the  person 
sound  in  mind,  it  was  his  duty  to  act  prudently ;  his  liberty  re- 
mained complete  with  regard  to  every  act. 

Later  the  law  shielded  the  individual  against  inequitable  consid- 
eration and  usury  ;  his  consent  was  made  secure  against  fraud  ;  he 
was  prohibited  from  doing  a  great  number  of  acts  which  might  in- 
jure him ;  a  certain  part  of  his  property  was  declared  inalienable. 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL  LAW  639 

But  it  was  often  evident  that  these  precautions  turned  to  his 
disadvantage  and  that  the  penalties  attaching  to  the  prohibitions 
were  too  severe  and  injured  him.  He  sought  the  restoration  of  his 
liberty  and  in  almost  every  particular  the  civil  law  has  granted 
it.  The  rate  of  interest  was  raised ;  no  restriction  was  laid  upon 
his  gambling ;  inequitable  conditions  no  longer  annulled  an  obli- 
gation. This  was  the  period  of  full  liberal  of  contract,  which  is 
still  advocated  by  a  certain  liberal  school.  In  the  field  of  in- 
dustrial law  the  shackles  of  the  guild  system  were  broken. 

Evolution  still  advances.  Complete  liberty  of  contract  has  so 
isolated  and  weakened  the  individual  that  the  present  effort  has 
been  away  from  this  situation  at  the  expense  of  something  of  his 
liberty.  The  guild  system  has  undergone  reform,  and  has  been 
changed  in  character.  Property  has  a  tendency  to  come  together 
into  masses  which,  if  not  perpetually  inalienable,  are  at  least 
unattachable  during  a  certain  period.  The  "  homestead  "  ap- 
peared in  the  United  States,  while  in  France  it  is  proposed  again 
to  recognize  "  personal  belongings  ",  or  inherited  as  distinguished 
from  purchased  property. 

Finally  at  an  intermediate  period  in  the  evolution,  after  complete 
liberty,  legal  prohibitions  appeared  in  the  interests,  true  or  alleged, 
of  society.  These  are  the  most  numerous  and  most  severe  class ; 
they  increase  as  society  grows  more  complex.  We  mean  the 
annulment  of  contracts  for  reasons  of  public  policy. 

It  would  take  too  long  to  enumerate  all  these  causes  of  nullity. 
The  prohibited  acts,  even  of  the  civil  law,  are  very  numerous; 
and  they  are  not  merely  acts,  but  conditions,  motives,  etc.  In 
this  respect  legislation  runs  contrary  to  natural  law.  Investiga- 
tion of  the  paternity  of  a  bastard  is  unlawful,  a  matrimonial  agree- 
ment after  marriage  is  unlawful,  a  revocable  gift  is  unlawful, 
adoption  in  a  host  of  ca-ses  is  unlawful,  the  sale  of  something  be- 
longing to  another  is  unlawful,  trust  entails  are  unlawful,  sale 
between  husband  and  wife  is  unlawful,  many  provisions  in  the 
contract  of  partnership  are  unlawful.  It  becomes  impossible 
to  take  a  step  in  the  present  Civil  Code  without  encountering  a 
grave  invasion  of  individual  liberty. 

The  German  Code,  though  very  recent,  has  not  gotten  away 
from  this  state,  although  it  has  diminished  the  number  of  pro- 
hibitions. 

Public  policy  is  a  veritable  obsession  of  the  lawmaker,  a  fact 
which  is  the  more  unfortunate  in  that  nothing  is  more  elastic  or  less 
solidly  grounded.     Alleged  immoralities  and  dangers  which  the 


640  PKOCESS   OF   LEGAL  EVOLUTION  [Part  III. 

law  would  suppress  are  not  such  in  reality.  And  besides,  in  the 
name  of  public  policy,  by  some  general  formula,  it  is  possible  to 
suppress  all  voluntary  acts. 

However,  there  is  already  promise  of  an  improvement  and  of  a 
return  to  liberty  of  contract.  Without  entering  into  a  long  de- 
velopment of  the  subject,  we  may  mention  the  Code  of  the  Con- 
vention of  1793  and  the  draft  of  the  Swiss  Civil  Code,  to  both  of 
which  we  referred  in  speaking  of  their  simplicity.  The  latter 
proposes  to  limit  to  a  minimum  that  unhelpful  branch  of  the  civil 
law  which  we  term  public  policy. 

§  23.  From  the  Unilateral  to  Bilateral  Agreements,  The 
division  of  the  law  into  unilateral  and  bilateral  is  very  far  reaching. 
The  conception  of  the  unilateral  is  the  simpler  and,  therefore, 
appeared  first.  In  reality  the  bilateral  right  is  the  union  of  two 
unilateral  rights  moving  in  opposite  directions,  closely  bound  to 
one  another  and  made  mutually  dependent.  We  established  this 
principle  earlier  in  our  discussion.  Obviously  the  union  of  two 
rights  came  subsequent  to  their  existence. 

History,  especially  the  well-known  history  of  Roman  law,  con- 
firms this.  A  unilateral  right  was  created  by  a  "  res,"  a  "  sti- 
pulatio  '^  or  a  writing ;  it  was  also  the  right  arising  out  of  an 
innominate  (or  generic)  real  contract,  since  it  was  only  by  the 
execution  of  one  of  the  promises  that  the  other  became  binding. 
The  true  domain  of  the  bilateral  was  very  restricted;  including 
the  contract  of  sale,  hire,  and  partnership. 

It  was  especially  the  ''  stipulatio  "  which  remained  the  type 
of  the  unilateral  right.  In  this  formality  there  were  often  two 
distinct  promises,  though  they  were  not  bound  to  one  another. 
Doubtless  intention  did  unite  them,  but  that  was  not  a  juridical 
bond.  The  unilateral  contract  was  furnished  with  a  special  action 
which  was  very  much  in  use :  the  ''  condictio."  It  was  neces- 
sarily ''  stricti  juris."  Its  advantage  was  immense  in  ascertaining 
the  terms  of  an  agreement,  even  one  which  might  have  been  made 
bilaterally.  It  was  divided  into  two  different  and  successive 
stipulations  by  a  procedure  of  general  application;  they  were 
the  stipulation  "  subjecta  "  and  "  subdita." 

The  bilateral  right  appeared  later.  A  few  of  these,  rigorously 
classified,  were  all  that  were  to  be  found  in  the  Roman  law.  They 
were  generalized  later  into  pacts.  The  French  law,  which  is  a 
derived  law,  and  which,  in  the  field  of  contracts,  was  inspired  by 
Roman  law,  more  than  any  other,  early  recognized  the  bilateral 
form.     The  promises  forming  the  contract  were  made  mutual  and 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  641 

dependent  one  upon  another.  This  period  of  bilateralism  co- 
incided with  the  stage  of  consent  and  of  the  autonomy  of  the  will. 
It  was  a  highly  equitable  phase  but  contained  practical  disad- 
vantages. Since  it  was  impossible  to  separate  the  two  rights 
from  one  another,  they  could  not  be  transferred  except  together, 
that  is,  each  one  with  its  dependence  upon  the  other.  A  third 
person  was  wary  of  such  a  right.  Not  only  was  he  discouraged 
by  the  formality  of  official  notice  to  the  debtor,  but  he  was  subject 
to  the  defenses  which  the  debtor  might  have  raised  against  the 
promisee.  So  long  as  the  right  remained  untransferable  from  the 
patrimony  of  the  creditor,  the  inconvenience  which  the  commer- 
cial need  of  rapidity  of  action  has  rendered  very  evident  was  not 
felt. 

In  the  bilateral  right  the  two  promises  did  not  play  the  same 
roles.  Each  party  contracted  a  different  obligation.  In  the 
sale  the  vendor  promised  to  transfer  the  property  and  the  vendee 
to  pay  the  price.  These  two  rights,  bound  one  to  the  other,  moved 
in  opposite  directions.  There  were  times  when  the  mutual  rights 
were  identical  though  still  moving  toward  one  another.  Such 
groups  of  inseparable  promises  became  polylateral,  giving  rise  to 
the  contract  of  partnership.  This  was  a  more  complex  relation- 
ship and  appeared  in  a  subsequent  phase  of  the  evolution. 

By  reason  of  the  disadvantages  which  we  have  pointed  out,  the 
bilateral  right  frequently  tended  to  resolve  into  unilateral  rights ; 
separation  of  the  combination  took  place,  especially  in  commercial 
contracts. 

The  two  mutually  related  rights  being  the  "  cause  "  one  of  the 
other,  each  was  separated  from  its  '*  cause  "  and  treated  as  single. 
In  a  sale  contracted  by  two  merchants,  there  remained  in  reality, 
after  delivery  of  the  object,  but  a  single  promise,  that  of  the  buyer 
to  pay  the  price.  If  this  were  transferred  along  with  the  original 
and  surviving  conditions,  such  as  the  guaranty  against  defects, 
want  of  title,  capacity,  etc.,  the  assignee  would  feel  his  insecurity 
and  would  withdraw.  To  avoid  this  it  was  sufficient  to  suppress 
the  '*  cause  "  or  to  express  an  indeterminate  "  cause  ",  such  as 
*'  value  received ",  and  complete  security  was  acquired.  This 
happened.  The  right  again  became  unilateral  and  was  transfer- 
able by  endorsement  to  a  person's  order  or  even  without  endorse- 
ment, to  bearer. 

The  reversion  to  the  primitive  phase  was  thus  completed  ;  evo- 
lution had  turned  upon  its  spiral  course;  commercial  law  had 
recovered  the  effects  of  the  "  stipulatio  "  of  the  Roman  law. 


642  PROCESS   OF   LEGAL   EVOLUTION  [Part   III. 

§  24.  From  Family  to  Individual  Right.  The  most  ancient 
of  all  rights  were  certainly  the  family  rights,  and  primitive  custom 
sought  to  uphold  them  in  every  possible  way.  Social  right  was 
the  first  to  enter  into  rivalry;  but  the  struggle  between  society 
and  the  family  falls  rather  within  the  subject  of  political  organi- 
zation. 

The  dominance  of  family  right  was  manifest  in  many  institu- 
tions :  the  husband's  and  the  father's  power  of  control  and  the 
master's  authority  over  the  slave,  all  of  which  were  at  first  very 
absolute.  It  was  also  evidenced  by  the  collective  property  in- 
terests of  the  family.  As  evolution  progressed  each  of  these  powers 
moderated  and  separated  rights  gradually  succeeded  to  collective 
interests.     Let  us  examine  each  one  of  these  subjects  separately. 

First  of  all  there  was  the  father's  power  of  control.  We  know 
to  what  extremes  it  was  carried  in  the  early  Roman  law.  There 
was  no  thought  of  protecting  the  child  by  law.  Among  the  Ger- 
manic tribes,  on  the  contrary,  while  the  father's  authority  was 
very  great,  it  was  in  the  interest  of  the  child  and  constituted  a 
sort  of  guardianship.  This  was  the  "  mundium."  In  both 
instances  it  moderated.  At  Rome  the  power  of  life  and  death 
disappeared;  the  child  was  given  an  allowance;  he  could  be 
emancipated.  But  in  principle  the  "  patria  potestas  "  continued 
during  the  life  of  the  "  pater  familias."  It  was  of  course  as  rep- 
resentative of  the  family  that  the  father  exercised  his  power,  and 
in  certain  countries  he  had  to  receive  the  approval  of  a  sort  of  family 
tribunal. 

Much  later,  in  modern  law,  we  find  the  power  of  control  belong- 
ing to  the  father  only  until  majority ;  his  rights  of  correction  are 
limited ;  he  may  only  manage  and  enjoy  the  usufruct  of  his  son's 
property;  he  may  be  deprived  of  his  authority.  In  France  the 
son  may  have  recourse  to  the  protection  of  the  court ;  the  daugh- 
ter may  no  longer  be  married  without  her  consent.  Individual 
rights  have  increased  while  family  rights  have  diminished  both 
in  duration  and  intensity. 

The  same  was  true  of  the  second  subordinate  element  of  the 
family,  the  wife.  She  was  first  the  slave  of  her  husband,  who 
might  repudiate  her  at  will.  Her  property  passed  to  him  in  the 
most  absolute  manner,  as  it  did  under  the  English  common  law 
and  under  the  ''  manus  "  of  the  Roman  law.  Under  oriental 
polygamy  the  wife's  individuality  was  yet  more  absorbed.  The 
harem,  the  gynseceum,  the  home  closed  about  her.  But  with 
time  her  freedom  grew.     Under  the  system  of  the  marriage  por- 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  643 

tion  of  the  Roman  law  she  was  recognized  as  having  a  distinct 
estate,  which  was  returned  to  her  in  case  of  divorce.  The  com- 
munity system  was  a  fresh  subjection ;  she  was  declared  without 
capacity.  But  if  unmarried  she  no  longer  remained  under  a 
perpetual  guardianship.  She  had  greater  personal  liberty.  With 
each  day  her  autonomy  became  more  pronounced.  In  the  last 
century  England  at  one  blow  struck  the  chains  from  her  with  re- 
gard to  her  estate.  Lastly  the  feminist  movement  has  won  her 
greater  and  greater  independence;  the  German  Civil  Code  has 
created  a  special  court  to  regulate  conflicts  between  husband  and 
wife.     It  is  a  second  triumph  of  the  individual. 

The  third  element  of  the  family,  the  slave,  after  many  vicissi- 
tudes, finally  left  the  family  to  become  a  free  wage  earner.  The 
slave  gained,  while  the  family  lost  one  of  its  essential  elements. 
The  emancipation  of  the  slave  was  a  slow  process  with  many  re- 
treating steps. 

It  was  not  alone  the  various  units  of  the  family  as  opposed  to 
the  family  head  who  won  recognition  of  their  own  personality. 
The  patrimony,  also,  from  collective  became  separate.  At  first 
absolute  indivisibility  endured  so  long  as  the  father  lived.  Some- 
times it  continued  permanently,  the  son  succeeding  to  the  father 
and  retaining  his  power  not  only  over  his  own  descendants,  but 
over  his  younger  brothers.  Later  the  emancipated  children 
emerged  from  his  authority  and  were  given  a  part  of  the  family 
estate,  and  even  out  of  the  patrimony  which  remained  in  common, 
allowances  were  given  without  the  donees  leaving  the  family  circle. 
Finally  the  indivisibility  of  the  estate  broke  down  and  inheritance 
properly  speaking  appeared.  For  centuries  the  idea  of  the  in- 
divisibility of  the  patrimony  was  legally  fortified  by  the  rights  of 
primogeniture,  of  the  male  line,  and  by  entails.  In  turn  this 
phase,  too,  disappeared.  Equal  partition  was  decreed  and  there 
were  as  many  estates  as  individuals. 

Again,  and  no  less  important,  the  family  bond  was  long  rein- 
forced by  the  obligation  of  the  father  to  respect  the  ''  reserve  " 
in  disposing  of  his  estate.  This  rendered  each  member  of  the 
family  dependent  upon  him.  Later  the  ** reserve"  was  weakened 
and  entirely  disappeared  in  certain  systems,  notably  the  Anglo- 
American.  That  was  the  signal  for  the  younger  son  or  the  less 
favored  child  to  leave  his  family  or  even  his  country  to  colonize. 
Individualism  thus  became  complete. 

This  marked  the  end  of  the  second  stage.  The  family  had 
disintegrated   under   the   influence   of  divorce,   feminism,   equal 


644  PROCESS   OF    LEGAL   EVOLUTION  [Part   III. 

partition  of  estates,  and  social  equality;  the  disruption  seemed 
excessive.  Then  society  began  the  reconstruction  of  the  family 
unit,  at  least  with  regard  to  the  family  estate.  Thus  the  ''  hofe- 
recht  "  and  the  distinction  between  inherited  and  purchased  prop- 
erty, already  described,  appeared.  For  the  legal  "  reserve  "  was 
substituted  the  family  right  to  an  allowance  for  maintenance. 
Evolution  was  turning  upon  itself. 

§  25.  From  Ethnic  to  Territorial  Law.  Law  arose  out  of  cus- 
toms which  grew  up  in  a  given  race.  If  the  race  changed  its 
place  of  abode,  it  carried  its  law  with  it.  When  isolated  members 
of  that  race  left  their  own  realm,  they  continued  to  be  governed 
by  their  own  law.  In  other  words  personality  of  law  obtained 
at  first.  The  conquered  retained  their  laws,  at  least  as  between 
themselves,  so  long  as  they  were  not  unfavorable  to  the  conqueror. 
They  did  not  adopt  those  of  the  conqueror.  The  foreigner,  too, 
preserved  his  law.  That  of  the  land  where  he  resided  for  the  time 
being,  as  on  a  voyage,  could  not  be  used  against  him.  Man  was 
not  yet  rooted  to  the  earth;  territoriality  had  not  yet  acquired 
its  full  force. 

It  is  evident  that  the  principle  of  material  law  is  operative  in 
two  different  spheres;  (a)  within  the  individual's  own  country; 
(b)  in  a  foreign  country  where  it  supplies  the  rule  as  to  the  proper 
law.  It  operates  to  determine  whether  an  individual  belongs  to 
one  nation  or  another  "  jure  sanguinis  "  or  ''  jure  soli." 

We  cannot  here  follow  the  whole  course  of  the  law's  develop- 
ment;   let  us  note  merely  its  principal  features. 

Personal  law^  governed  at  first  in  a  conflict  of  laws  within  a  given 
country.  Each  race  followed  its  own  law.  After  the  barbarian 
conquest  of  Gaul,  the  Gallo-Romans  were  governed  by  their 
personal  law  which  was  the  '^  Lex  Romana  Visigothorum  "  and 
the  "  Lex  Romana  Burgundiorum  ",  while  the  barbarians  were 
under  their  own  law  which  was  the  "  Lex  Salica ",  the  "  Lex 
Ripuaria  "  and  the  Burgundian  and  Visigothic  law.  In  their 
relations  to  one  another,  each  race  preserved  its  own  laws ;  ques- 
tions arising  between  Gallo-Romans  and  barbarians  were  governed 
by  the  barbarian  law,  since  one  law  or  the  other  had  to  be  chosen. 
This  was  the  extreme  period  of  personal  law. 

Then  a  syncretism,  or  fusion,  took  place  between  the  bar- 
barian and  the  Gallo-Roman  law.  A  mixed  system  resulted 
that  was  both  of  these  at  once.  The  question  of  the  proper 
law  no  longer  arose,  since  there  was  but  one  law.  But  this 
reduction  was  a  result   of  the   influence   of  the   land.     By  its 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  G4o 

attraction  it  merged  different  races  and  different  laws.  Terri- 
toriality triumphed. 

Today  we  see  again,  after  new  conquests,  a  renascence  of  the 
early  personal  law.  In  Algeria  the  Arabs  follow  the  Moslem 
law  wherever  a  Frenchman  is  not  involved. 

The  rules  of  international  law  determine  whether  the  law  of 
the  person's  nationality  or  of  his  domicile  are  to  govern  whenever 
a  conflict  arises  between  the  two.  In  this  science  a  similar  evolu- 
tion may  be  remarked,  though  less  restrained  by  the  pressure  of 
legislation  and  developing  with  greater  freedom.  The  subject 
is  too  vast  for  discussion  here  and  we  can  but  briefly  sketch  it. 

The  first  principle  to  appear  was  again  that  of  personality. 
Italy  originated  the  study  of  this  difficult  problem  and  adopted 
this  solution,  though  with  certain  limitations.  The  doctrine  was 
supported  by  Bartolus  and  adopted  by  Guy  Coquille  and  Du- 
moulin,  who  put  it  into  definite  form.  It  governed  exclusively 
up  to  the  1500  s.  Since  then,  according  to  this  rule,  the  statutes 
regulating  procedure  and  the  form  of  the  act  are  purely  territorial. 
In  the  remaining  questions,  a  distinction  was  drawn  in  contracts 
between  matters  which  were  left  to  the  intention  of  the  parties 
and  those  regulated  by  law;  and  in  the  latter  a  difference  was 
made  between  matters  governed  by  real  and  by  personal  statutes. 
The  personal  statute  predominated.  In  the  first  years  of  the  1700  s 
this  theory  broke  down  and  lawyers  rallied  to  the  contrary  theory 
of  d'Argentre. 

This  jurist  of  Brittany  opposed  the  principle  of  personal  law 
and  aimed  to  establish  that  of  territoriality.  There  took  place 
then  in  the  conflict  of  laws  between  nations  the  same  conversion 
as  in  the  old  conflict  between  the  various  systems  in  force  within 
a  given  country,  that  is  to  say,  the  conversion  from  personal  law 
to  territorial  law.  This  author  reduced  all  statutes  to  two,  the 
real  and  the  personal,  and  the  latter  was  made  to  govern  by  way 
of  exception.  Lastly  he  created  the  mixed  statute,  applicable 
at  once  to  persons  and  property,  assimilating  it  to  the  real  statute. 
The  Dutch  jurists  espoused  this  movement  and  later  the  French, 
though  slowly. 

During  the  1700  s  territoriality  triumphed,  although  status 
and  capacity  were  governed  by  the  law  of  the  person.  The  sit- 
uation remained  the  same  under  the  French  Civil  Code,  which  has 
dealt  very  unsatisfactorily  with  the  problem.  Police  regulations, 
immovable  property  and  the  form  of  acts  are  governed  by  the  real 
statute ;  with  regard  to  movable  property  and  contracts  the  Code 


646  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

is  silent.  As  to  movables,  while  often  following  the  domicile 
of  their  owner,  decisions  show  a  strong  tendency  to  subject  them 
to  the  real  statute,  as  in  case  of  attachment,  replevin,  or  lien. 
As  to  contracts,  the  French  courts  lean  towards  the  rule  of  terri- 
toriality, which  may  be  considered  as  a  fundamental  principle  of 
our  law. 

The  principle  of  pure  territoriality,  that  is,  without  any  of  the 
moderating  exceptions  which  French  law  admits,  obtains  in  Eng- 
land, Anglo-American  countries,  and  the  Baltic  provinces  of  Russia. 
It  has  been  tempered  only  in  its  applications. 

Such  have  been  the  evolutionary  stages  which  the  law  has  com- 
pleted. A  new  doctrine  is  now  emerging  which  tends  to  revert 
in  part  to  the  personal  stage.  It  originated  in  Italy  and  is  known 
as  the  neo-Italian  system.  It  leaves  to  territorial  law  questions 
of  police,  internal  security,  immovable  property,  and  the  form  of 
acts,  while  all  the  rest  is  governed  by  the  personal  law,  indeed  by 
the  national  law  properly  speaking  and  not  that  of  the  domicile. 
This  reform  relates  especially  to  the  law  of  inheritance.  Under 
the  present  system  movables  follow  the  law  of  the  domicile  and 
immovables  that  of  their  situs;  the  Italian  doctrine  governs 
both  by  the  law  of  the  decedent's  domicile. 

Lastly  the  evolution  which  we  have  been  describing  has  been 
felt  in  the  determination  of  nationality.  Is  nationality  deter- 
mined '^  jure  sanguinis  "  or  "  jure  soli  ",  by  race  or  by  soil  ?  Here 
there  has  been  a  parallel  development. 

At  first  a  person's  nationality  was  determined  "  jure  sanguinis." 
The  personal  element  controlled.  This  rule  obtained  in  Greece 
and  Rome.  Accident  of  birth  in  a  certain  city  had  no  part  in 
determining  the  point.  In  Greece  both  father  and  mother  had 
to  be  Greeks.  In  Rome  children  of  a  civil  law  marriage  followed 
the  nationality  of  the  father ;  while  that  of  a  marriage  according 
to  the  "  jus  gentium  "  followed  the  nationality  of  the  mother. 
The  Germans  had  a  somewhat  different  system.  It  was  neither 
place,  birth  nor  race  which  counted,  but  affiliation  with  a  tribe. 
The  test  was  still  one  of  race,  but  of  adoptive  race. 

After  the  barbarian  conquests  the  rule  changed.  The  rule  of 
"  jus  sanguinis  "  finally  disappeared  entirely.  Every  one  born 
upon  the  soil  of  the  overlord  belonged  to  it.  The  whole  of  feudal 
law  and  later  Pothier  and  Domat  followed  this  theory.  Place 
of  birth  was  enough ;  the  child  born  abroad  of  French  parents 
was  a  foreigner.  This  was  the  feudal  ideal,  which  placed  land 
above  everv  other  consideration. 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  ^7 

At  the  close  of  the  Old  Regime  the  force  of  territoriality  had 
spent  itself.  French  citizenship  was  attributed  retroactively 
to  children  born  abroad  of  French  parents,  upon  their  return  to 
France.  Often  even  it  was  enough  that  they  persevered  in  their 
intention  to  return.  The  Civil  Code  adopted  the  principle  of  per- 
sonality. A  child  is  French,  "  jure  sanguinis."  If  born  abroad  of 
French  parents,  he  is  French ;  if  born  in  France  of  foreign  parents, 
he  is  foreign.  But  the  "jus  soli  "  has  left  a  few  traces  in  the 
special  rule  favoring  the  naturalization  of  a  foreigner  born  in 
France  of  foreign  parents  who  were  themselves  born  there  or  even 
of  foreigners  who  were  not  born  on  French  soil ;  as  also  of  the 
child  born  in  France  of  unknown  parents;  and  finally  in  the 
obligation  of  military  service.  The  consequence  has  been  a 
system  in  which  the  "  jus  sanguinis "  predominates.  So  the 
evolution  of  the  law  has  returned  to  its  point  of  departure. 

§  26.  From  Exclusion  to  Admission  of  Foreigners.  We  are  here 
concerned  with  two  different  though  related  ideas :  (a)  the  admis- 
sion of  foreigners  to  civil  rights  ;  (b)  naturalization  of  foreigners. 

The  admission  of  foreigners  to  civil  rights  was  not  at  first  recog- 
nized. At  Rome  there  were  two  classes  of  foreigners:  the  bar- 
barian and  the  peregrin.  The  former  had  no  rights ;  he  was  a 
perpetual  enemy  until  he  settled  down  upon  the  confines  of  the 
Empire.  The  peregrin  was  a  unit  of  the  Empire,  though  he  occu- 
pied a  position  inferior  to  the  Roman  citizen.  He  retained  his 
own  law,  but  in  his  relations  with  the  Romans  he  enjoyed  no  civil 
rights.  The  hate  for  the  foreigner  was  fundamental  and  rested 
in  part  upon  religious  causes.  Commerce  alone  has  moderated 
somewhat  the  hate  of  nations.  Henotheism  was  the  consequence 
among  certain  peoples,  for  example,  among  the  Jews. 

Commerce  attracted  foreigners  without  according  them  any 
true  civil  capacity.  War  introduced  them  as  slaves.  They 
could  not  hold  land.  At  Athens  the  barbarian  had  no  rights ;  the 
"  metoikoi  ",  or  foreigners  whose  residence  was  authorized,  could 
not  make  a  will,  receive  a  legacy,  contract  marriage  under  the 
civil  law,  or  sue  except  through  a  patron ;  the  "  isotiles  ",  or  for- 
eigners with  whom  a  treaty  had  been  signed,  might  obtain  a 
partial  enjoyment  of  rights.  Similarly  Lacedemonia  rigorously 
excluded  all  foreigners.  • 

Under  the  Roman  law  some  of  the  Italian  cities  enjoyed  the 
"  jus  latii  "  which  gave  partial  rights,  while  others  enjoyed  com- 
plete rights.  The  peregrin  was  refused  the  "jus  connubii "  and  the 
"  jus  commercii  ",  and  was  protected  only  by  the  "  jus  gentium.'? 


648  PROCESS   OF    LEGAL   EVOLUTION  [Part   III.  • 

With  the  Franks  the  foreigner  was  not  recognized  as  having 
either  property  or  family ;  he  could  not  marry  a  Frank  or  have 
lawful  children. 

Under  the  feudal  system  the  foreigner  was  no  longer  necessarily 
of  a  different  race,  but  merely  born  outside  the  feudal  lord's 
jurisdiction.     His  incapacities  were  numerous. 

Under  the  monarchy  he  acquired  partial  capacity  similar  to 
the  peregrin  of  the  Roman  law;  he  was  protected  by  the  "jus 
gentium." 

The  French  Revolution  abolished  the  rule  excluding  the  for- 
eigner from  civil  rights.  Some  writers  believe  that  under  the 
French  Civil  Code  the  exclusion  of  the  foreigner  is  still  the  rule, 
and  his  admission  the  exception ;  others  hold  that  he  enjoys  every 
right  derived  from  natural  law  but  no  others.  This  is  the  ruling 
opinion  of  the  courts.  Yet  others  maintain  that  he  possesses 
full  rights,  subject  to  exceptions.  Evidently  the  law  is  far  from 
explicit. 

Since  the  Code  was  adopted,  acts  have  been  passed  granting 
the  foreigner  many  of  those  rights  which  were  formerly  denied 
him.  But  his  civil  capacity  is  still  incomplete.  It  tends  steadily, 
however,  toward  the  assertion  of  greater  right;  its  evolution  is 
in  that  direction. 

The  second  question  with  which  we  are  here  concerned  is  that 
of  naturalization.  Where  it  is  rendered  easy,  most  of  the  dis- 
criminatory factors  which  we  have  just  mentioned  disappear. 
It  is  indeed  becoming  increasingly  easy.  Athens  made  broad 
concessions ;  Caracalla  gave  it  to  all  peregrins ;  the  German  bar- 
barians made  affiliation  with  their  tribes  a  simple  matter. 

On  the  other  hand  the  early  French  law  was  slow  to  grant 
naturalization.  The  situation  continued  so  up  to  the  second 
half  of  the  last  century.  Since  then  numerous  laws  have  greatly 
facilitated  it.  The  evolution  of  naturalization  had  advanced 
parallel  to  and  abreast  of  the  admission  to  civil  rights.  In  addi- 
tion to  ordinary  naturalization  there  exists  in  France  a  privileged 
form  in  favor  of  the  child  of  a  former  French  citizen,  also  of  the 
child  of  a  foreign  mother  who  marries  a  Frenchman.  Besides 
this  the  recovery  of  lost  citizenship  has  been  made  easy;  and 
lastly  there  exists  a  mixed  condition  between  the  national  and  the 
foreigner,  namely,  authorized  residence  in  France. 

Instead  of  being  merely  permitted  or  even  facilitated,  natural- 
ization may  be  encouraged  and  rewarded  whenever  a  national 
territory  is  too  extensive  for  the  existing  population.     It  then 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  649 

holds  out  attractions  to  foreigners  to  immigrate  either  in  limited 
numbers,  or  in  great  masses,  as  has  happened  in  the  Argentine 
Republic  and  the  United  States.  Economic  interest  energizes 
the  movement. 

Often,  on  the  contrary,  this  same  motive  repels  the  foreigner. 
It  is  desirable  to  avoid  dangerous  competition  of  foreign  labor. 
This  has  happened  in  the  case  of  the  exclusion  of  the  Chinese 
from  the  United  States. 

Last  of  all  there  is  a  fear  of  the  contamination  of  blood  or  the 
absorption  of  the  superior  by  .the  inferior  type,  for  example,  of 
the  whites  by  the  negroes.  Here  anthropological  reasons  in  turn 
become  uppermost  and  a  regression  takes  place. 

§  27.  From  a  Law  of  Violent  Methods  to  a  Law  of  Peaceful 
Methods  and  of  Equitable  Aims.  Law  reposed  at  first  upon  force. 
All  history  testifies  to  this,  and  we  need  cite  but  a  few  examples. 
Even  today  one  whole  field  of  law  (with  which,  it  is  true,  we  are  "^ 
not  concerned  here),  is  governed  for  the  greater  part  by  violence.  ^ 
The  law  of  nations,  properly  speaking,  is  in  a  perpetual  state  of 
obscuration.  Peace  is  but  a  truce,  and  as  soon  as  a  nation's 
strength  is  regained  it  breaks  the  treaties  which  it  has  solemnly 
signed.  No  organization  has  yet  contrived  to  realize  the  triumph 
of  right  without  the  shedding  of  blood. 

In  the  beginning  it  was  not  only  public  law,  but  also  private  law 
which  was  enforced  by  violence.  Controversies  between  indi- 
viduals were  settled  by  strife  between  them  and  in  the  Middle 
Ages  by  war  between  castle  and  castle.  It  was  known  as  private 
war. 

This  sociological  stage  is  still  recognized,  and  we  will  not  delay 
to  describe  it.  In  all  savage  races  it  was  found  in  its  pure  state. 
With  time  society  interfered  to  moderate  its  violence,  just  as  we 
diminish  warfare  today  by  arbitration.  But  for  a  long  while  the 
rule  of  force  stood,  and,  indeed,  still  stands. 

Thus  we  see  how  in  criminal  law  each  rendered  justice  unto 
himself,  by  taking  private  vengeance.  The  penalty  inflicted 
was  without  limit.  Later  civilization  intervened,  not  at  first 
with  a  view  to  settle  the  conflict  but  to  mitigate  it.  It  limited 
vengeance  by  the  "  lex  talionis  "  or  **  an  eye  for  an  eye."  Then 
through  pecuniary  composition  it  converted  corporal  punishment 
into  the  payment  of  damages. 

Civil  procedure  was  at  first  just  as  violent  as  criminal  pro- 
cedure; indeed  they  were  identical,  for  no  clear  distinction  was 
then  made  between  the  two  forms  of  law.     However  society  in- 


650  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

terfered  more  directly  by  being  present  at  the  contest,  counting 
the  blows,  and  proclaiming  the  victor.  Nevertheless,  the  parties 
were  still  waging  private  war  though  regulated  by  the  directing 
and  sanctioning  hand  of  society.  Procedure  was  still  violent. 
There  was  the  judicial  duel,  the  ordeal,  and  the  oath.  In  the 
first  of  these,  the  force  of  the  contending  parties  decided  the  issue ; 
in  the  second,  divine  was  substituted  for  human  force ;  in  the 
third,  it  was  not  apparent.  But  it  was  there,  for  to  the  Christian, 
perjury  might  bring  beyond  the  grave  or  even  instantly  the 
most  terrible  punishment. 

When  law  passed  to  a  higher  phase,  where  violence  was  pro- 
hibited and  where  society  itself  settled  conflicts,  traces  remained 
of  the  old  state.  Many  acts  of  procedure  were  still  symbolic 
of  the  brute  force  to  which  they  had  succeeded.  At  Rome  the 
action  known  as  the  ''  vindicatio  "  clearly  preserved  this  charac- 
ter. The  plaintiff,  armed  with  a  lance,  touched  the  object  which 
he  claimed  and  said :  "  aio  rem  meam  esse  ex  jure  Quiritium." 
Then  he  laid  the  lance  upon  the  thing.  The  defendant  did  like- 
wise. The  magistrate  did  not  decide,  at  least  not  at  once  nor 
directly.  A  fictitious  combat  took  place,  the  "  manuum  conser- 
tio."  This  being  inconclusive,  the  praetor  intervened.  But  he 
did  not  yet  give  judgment.  From  violence  the  parties  passed 
to  a  wager  upon  which  he  decided.  But  the  wager  was  volun- 
tary, like  a  treaty  after  war.  The  praetor  then  declared  who  won 
the  ''  sacramentum  ",  which  was  the  object  of  the  wager. 

In  the  same  way  when  the  obligatory  oath  conclusive  of  the  issue 
disappeared  from  French  common  law  procedure,  it  left  many 
traces  and  the  oath  is  still  in  frequent  use. 

The  word  "  seizure  "  in  French  procedure  is  a  sign  of  the  early 
condition.  It  is  a  violent  laying  on  of  hands,  just  as  an  arrest. 
It  is,  however,  effected  by  society. 

Marriage  ceremonies,  while  now  consensual  in  all  races,  bear 
marks  of  their  violent  origin  in  the  early  forcible  capture.  For 
capture  was  everywhere  simulated  and  consequently  consent 
excluded,  not  in  reality  of  course,  but  in  form.  And  yet  in  this 
matter  force  was  more  odious  than  in  other  parts  of  the  law  and 
even  the  semblance  of  it  would  have  been  abolished  had  not  the 
tenacity  of  historical  habit  triumphed. 

It  was  in  the  creation  of  the  right  itself,  and  yet  more  in  com- 
pelling obedience  to  it,  that  force  long  dominated  in  the  law, 
at  first  in  reality,  and  later  symbolically.  So  great  has  been  the 
progress  that  the  second  stage,  in  which  we  are  now  living,  seems 


Chap.   XXV.]  THE   EVOLUTION   OF  CIVIL   LAW  651 

to  many  of  a  very  different  and  opposite  nature.  To  physical  com- 
bat has  succeeded  peace ;  to  force  has  succeeded  consent ;  and  to 
iniquity,  justice.  But  satisfaction  is  really  one  of  words.  The 
reign  of  justice  is  not  yet  come.  To  violence  has  succeeded  not 
justice  but  stratagem,  not  only  in  the  law  itself  but  above  all  in  its 
execution.  And  strategy  often  produces  consequences  similar 
to  force.  To  realize  this  well,  we  should  not  look  alone  at  the  law 
but  also  at  the  use  which  is  made  of  it.  If  we  examine  merely 
substantive  law,  this  is  true ;  how  much  more  so  when  we  observe 
it  in  operation ! 

Let  us  take  marriage  as  an  example.  It  is  regularly  contracted 
and  its  effects,  often  so  hard  upon  the  woman,  are  but  the  conse- 
quences of  her  own  consent.  The  overbearing  character  of  the 
husband  will  be  tempered  by  mutual  affection;  the  excessive 
control  which  the  matrimonial  regime  confers  upon  him  (to  her 
ruin)  will  be  moderated  in  reality  because  of  her  happy  choice 
and  because  he  will  be  just.  And  yet  even  so,  the  situation  of  the 
wife  is  precarious,  because,  without  wrongful  intention,  the  hus- 
band may  by  unfortunate  speculation  carry  her  down  with  him 
in  his  ruin,  becoming  hardened  and  embittered  by  these  circum- 
stances. But  how  much  more  is  her  plight  aggravated  by  the 
deceit  which  the  law  allows  and  even  abets  !  The  marriage  is 
generally  contracted  without  the  woman's  real  consent  and  without 
wise  advice  from  any  hand;  the  parents'  desire  is  uppermost; 
the  future  husband  hides  his  true  economic  and  real  self  and  in 
the  case  of  a  certain  class  of  maladies,  his  physical  condition. 
He  may  be  a  spendthrift,  or  penniless ;  if  so,  the  embarrassments 
which  have  been  mentioned  become  veritable  dangers. 

"  Summum  jus,  summa  injuria  "  still  epitomizes  the  situa- 
tion. The  father,  protected  by  the  law,  refuses  to  recognize  his 
illegitimate  child,  although  convinced  that  it  is  his ;  he  offers  no 
assistance  but  abandons  the  woman  he  has  seduced.  All  this  is 
strictly  according  to  law.  Can  we  then  pretend  that  the  reign 
of  justice  is  at  last  come?  Suppose  I  have  an  undisputed  right. 
I  may  abuse  it.  As  creditor  I  am  not  content  merely  to  press  a 
poor  debtor  for  payment ;  I  pile  up  every  possible  formality  and 
cost  against  him.  He  should  have  paid  me,  of  course,  but  by  this 
manoeuvre  I  double  his  debt  and  make  it  impossible  for  him  to 
pay.  He  tenders  capital  and  interest :  I  refuse,  demanding  my 
costs  and  continue  to  add  new  ones.  If  the  creditor  covets  his 
debtor's  property.,  the  code  lends  its  assistance  to  his  inhumanity 
and  perhaps  his  deceit.     But  today  we  see  emerging  the  ideal 


652  PROCESS   OF   LEiGAL   EVOLUTION  [Paet   III. 

that  an  abusive  exercise  of  a  right  should  be  punished.  It  has 
been  formulated  in  this  way  in  the  German  Civil  Code. 

More  than  any  other  department,  civil  procedure  has  shown 
the  rule  of  deceit  succeeding  to  the  law  of  force  and  bringing  with 
it  almost  the  same  disasters.  It  is  in  effect  a  conflict  "  sui  generis  " 
which  has  been  substituted  for  the  primitive  conflict  of  force  and 
which  seems  but  a  mimicry  of  it.  Its  wounds  are  often  as  deep, 
its  risks  as  serious;  numerous  indeed  are  those  who  have  fallen 
upon  the  battle  field  of  procedure.  Each  day  it  becomes  more  ap- 
parent. The  struggle  is  not  in  the  open;  it  is  assassination  or 
a  guerilla  warfare  in  the  thickets.  This  battle  of  craft  is  enacted 
by  the  parties  under  the  eyes  of  the  judge,  who  rarely  has  the  right 
to  interfere.  Even  the  terminology  is  significant;,  the  party 
attacked  is  the  "  defendant."  The  struggle  begins  as  in  real  war- 
fare, by  skirmishes;  later  and  before  the  gist  of  the  matter  is 
reached  there  are  brilliant  passes  at  arms :  questions  of  jurisdic- 
tion and  of  nullity.  Each  step  of  the  procedure  is  an  engagement. 
Ammunition  is  expended  broadcast,  at  first  in  small  sums,  which 
are  like  the  clashes  of  the  advance  guard,  then  in  floods,  when 
the  parties  come  to  pay  for  the  taking  of  testimony,  for  experts, 
and  for  the  judgment.  Damages  are  the  war  indemnity.  But 
why  continue  a  comparison  which  must  be  evident  to  every  mind  ? 

We  would  emphasize  the  fact  that  the  period  of  legal  deceit  is  now 
at  its  height.  Each  pleader  strives  to  conceal  what  is  contrary  to 
his  interests  and  to  take  advantage  of  everything  that  helps  his 
cause.  Each  tries  to  deceive  the  judge,  even  when  his  right  is  clear. 
Not  only  are  facts  misrepresented  but  also  the  law,  whenever  pos- 
sible, and  that  is  easy  where  the  law  is  as  obscure  as  in  France. 

This  is  a  picture  of  procedure.  No  ^oubt  craft  is  preferable 
to  violence  from  the  point  of  view  of  social  order,  but  the  risk 
that  the  judgment  is  wrong  is  at  times  as  great. 

The  winner  of  a  lawsuit  is  often  as  cruel  as  the  victor  of  a  judi- 
cial duel  of  old.  Pitilessly,  without  mercy  or  truce  he  follows  up 
his  victory  by  a  forcible  levy  carrying  ruin  with  it. 

But  the  debtor  meets  ruse  with  ruse  and  his  may  be  quite  as 
unjust.  During  the  suit  he  may  bring  about  his  own  insolvency 
and  in  ordinary  cases  he  succeeds  in  doing  so  without  his  adversary 
being  able  to  prevent  it.  His  creditor  can  obtain  no  preventive 
measures.  As  the  castle  is  surrendered  it  is  blown  up.  After 
trial  there  is  appeal  and  a  new  trial.  The  creditor  suddenly  finds 
he  is  dealing  with  an  insolvent. 

It  is  true  that  sometimes  the  creditor  is  allowed  to  secure  his 


Chap.   XXV .J  THE   EVOLUTION   OF   CIVIL   LAW  653 

position  by  a  preliminary  attachment.  But  then  he  in  turn  abuses 
his  right  and  immobilizes  alt  his  adversary's  assets. 

There  is  one  state  of  facts  prohibitive  of  an  action  at  law  and 
that  is  the  debtor's  clear  insolvency.  But  the  debtor  will  profit 
thereby  by  other  ruses,  harassing  his  creditor  and  obliging  him  to 
advance  considerable  costs. 

It  is  evident  that  the  vicissitudes  of  this  new  kind  of  warfare 
are  many  and  that  it  is  far  from  ideal.  And  yet  that  is  not  the 
worst,  for  the  litigant  has  yet  to  count  with  the  agents,  the  retain- 
ing fees  and  costs. 

Lawyers  are  no  doubt  indispensable,  since  most  litigants  are 
not  competent  to  direct  and  explain  their  affairs ;  and,  moreover, 
they  have  not  the  time.  But  many  codes  vie  in  multiplying  these 
agents :  the  solicitor,  the  attorney  of  the  commercial  courts,  the 
barrister,  the  process  server.  Each  one  contributes  his  special 
parasitism,  without  counting  the  State  which  levies  upon  the 
public  the  whole  weight  of  its  judiciary  tax.  These  agents 
add  their  own  deceptions  to  those  of  the  litigants,  sometimes  to 
aid,  sometimes  to  injure  them.  The  law  is  their  accomplice, 
multiplying  subtleties  by  which  they  profit.  The  costs  multiply 
tenfold  in  this  way.  La  Fontaine's  story  of  the  two  litigants 
and  the  oyster  is  no  longer  a  fable  but  a  truism.  Gratuitous 
justice  is  the  worst  of  all  ironies.  And  we  are  not  yet  done. 
Lawyers'  fees,  though  regulated,  are  often  set  at  a  higher  figure  by 
custom  or  by  the  officer  charged  with  fixing  them.  They  are  in- 
creased by  unforeseen  expenses.  Finally  these  agents  demand 
preliminary  fees  which  are  rarely  accounted  for  in  the  end;  yet 
without  them,  the  parties  may  not  go  on,  for  like  soldiers,  they 
cannot  fight  without  ammunition. 

Everywhere  in  juridical  evolution  strategy  has  succeeded  to 
force.  It  thrives  upon  formalism,  which  is  characteristic  of  our 
period,  and  draws  from  it  its  best  nourishment. 

In  concluding,  it  should  be  remarked  that  the  most  violent 
and  warlike  races  have  •  become  the  most  litigious.  The  fact 
might  at  first  astonish  us.  The  explanation  is  that  legal  process 
is  another  kind  of  war ;  each  judicial  debate  is  a  kind  of  combat. 
The  Romans,  conquerors  of  the  known  world,  developed  a  law 
which  was  long  accepted  and  which  dominated  all  other  systems. 
So  the  warlike  Germans  have  given  special  attention  to  the  devel- 
opment of  their  law;  and  the  Normans  before  whom  Europe 
trembled,  are  rightly  or  wrongly  regarded  in  France  as  its  most 
litigious  class.     Procedure  is  a  mimic  warfare. 


654  PROCESS  OF   LEGAL  EVOLmON  [Paet  m. 

Though  we  are  now  only  at  the  dawn  of  such  a  future,  the 
time  will  come  when  violence  and  stratagem  will  give  way  to  the 
reign  of  humanity.  In  the  economic  world  something  of  the  same 
sort  has  taken  place.  There  was  first  the  struggle  for  life  between 
individuals  or  nations,  carried  on  by  violence.  Because  we  seem 
to  have  successfully  suppressed  violence  (we  have  not  in  fact  yet) 
we  think  that  everything  has  been  won.  This  is  illusion ;  to  the 
struggle  for  plunder  has  succeeded  the  purely  economical  conflict 
waged  with  the  arms  of  strateg>'  and  also,  it  is  true,  with  the  might 
of  capital,  over  the  whole  world  or  local  market.  The  richest,  if 
also  the  most  astute  and  the  least  upright,  eliminates  aU  competi- 
tors, reducing  them  to  miseiy  and  famine  imtil  they  are  destroyed. 
His  attitude  is  the  same  towards  the  laborer,  whom  he  oppresses 
by  the  mere  play  of  what  is  called  "  the  iron  law." 

There  are,  however,  sure  though  rudimentary-  signs  of  the 
coming  of  equity-.  In  the  economic  world  competition,  as  the  sole 
regulative  mechanism,  is  being  discarded  and,  without  being 
suppressed,  is  being  moderated  by  the  conception  of  solidarity-. 
In  law  the  movement  is  toward  the  abohtion  of  formalism,  the 
strict  rules  of  positive  law,  Uteral  interpretation  and  legislative 
immobihtA',  traits  which  have  donynated  up  to  the  present  time. 
Above  all  procedure  is  undergoing  simplification.  The  expense 
of  justice  is  reduced,  though  deceit  goes  unpunished ;  the  number 
of  intermediar\-  agents  is  being  reduced  to  a  minimum ;  all  that 
can  be  regulated  is  r^iulated  in  advance,  and  without  useless 
inhibitions.  We  shall  see  later  how  applied  sociology-  may  bring 
about  the  new  era. 

§28.  From  Oral  to  Written  Form  and  the  Return  to  Oral 
Form.  In  all  branches  of  institutions  or  of  human  knowledge, 
the  oral  preceded  the  written  phase,  for  the  simple  reason  that 
writing  was  at  first  unknown  or  barely  known.  WTien  it  was 
invented  it  was  in  form  of  inscriptions  upon  stone  and  natiu^Uy 
was  rare.  Later  came  parchment,  but  it  could  not  be  used  lav- 
ishly. A  durable  material  was  needed  which  would  sm^-ive  the 
centuries  and  not  require  renewal.  StiU  later  printing  was  dis- 
covered and  manuscripts  were  multiplied  endlessly.  But  a  knowl- 
edge of  writing  was  still  exceptional.  It  was  only  in  our  day  that 
such  a  knowledge  became  g«ieral. 

During  all  that  period  memory'  was  ob\-iously  the  only  instru- 
ment of  conservarion.  Ideas,  legal  maxims,  the  elements  of  science, 
philosc^hic  thought  were  transmitted  "  \-iva  voce  "  from  genera- 
ticHi  to  generation  by  verses.     The  lower  classes  still  retain  in 


Chap.  XXV.]  THE   EVOLUTIOX   OF  CIVIL  LAW  655 

some  countries,  especially  in  Germany,  legal  maxims  in  rh\Tne 
and  assonance;  even  the  jurists  of  long  ago  clothed  their  ideas 
in  characteristic  verses  by  which  they  have  been  preserved.  For 
a  long  while  there  was  no  wTitten  record,  ever\1:hing  was  entirely 
oral. 

This  state  of  things  was  observable  in  the  law,  the  judgment, 
the  procedure  and  the  proof. 

At  first  oral  law  was  unwritten  custom.  This  stage  paralleled 
that  of  the  production  of  customary  law,  just  as  ordained  law 
was  contemporary  with  a  knowledge,  such  as  it  was,  of  writing. 
There^  resulted  a  veritable  juridical  folklore,  highly  interesting 
to  observe.  We  have  already  studied  customary  law  and  shall, 
therefore,  not  dwell  longer  on  it  here.  From  oral  customary 
law  the  evolution  passed  to  WTitten  customary  law  by  a  curve  which 
we  have  already  described  and  which  leads  to  ordained  law,  and 
from  thence  to  codified  law. 

In  the  same  way  judgments  were  in  the  beginning  pronounced 
orally  and  not  written.  No  trace  of  these  decisions  remained 
except  in  the  memory.  Under  such  conditions  there  could  be  no 
such  thing  as  a  true  body  of  judge-made  law.  But  soon,  in  France 
for  example,  judgments  were  committed  to  writing  and  finally 
brought  together  in  the  collection  known  as  "  Olim." 

But  the  profound  distinction  between  oral  and  written  law  is 
yet  more  remarkable  arid  more  persistent  in  the  subject  of  the 
judicial  investigation  of  facts  preliminary  to  trial  ("  instruc- 
tion ")  and  of  evidence.  These  two  subjects  we  should  distin- 
guish, and  with  regard  to  judicial  investigation  we  must  differen- 
tiate between  criminal  and  civil  law. 

Of  these  two  forms  of  preliminary  judicial  investigation,  the 
criminal  is  outside  our  program.  And  yet  it  may  throw  a  great 
deal  of  light  upon  it.  All  systems  of  preliminary  criminal  investi- 
gation fall  into  two  groups :  the  written,  or  informative,  and  the 
oral.  The  first  of  these  has  dominated  in  France  and  still  per- 
sists to  a  large  measure. there  and  in  southern  nations ;  the  second 
is  the  Anglo-American  system.  They  represent  respectively  the 
system  of  secret  and  of  public  procedure. 

In  the  strict  regime  of  written  procedure,  the  entire  drama  im- 
folds  in  the  chambers  of  the  judge  charged  with  the  preliminary 
investigation,  who  prepares  the  information.  Later  the  court 
passes  judgment  upon  this  record,  which  is  transmitted  to  it.  The 
decision  is  consequently  upon  a  \sTitten  record ;  there  is  no  oral 
debate.     This  was  the  method  of  the  Chamber  of  Accusation  of 


656  PROCESS    OF    LEGAL   EVOLUTION  [Part  III. 

Imperial  France;  the  same  was  formerly  used  in  every  prelimi- 
nary investigation  which  was  inquisitorial. 

In  a  mixed  system  the  preliminary  investigation  is  secret  and 
written,  but,  when  the  case  comes  before  the  courts,  the  record 
is  merely  informative  and  at  the  trial  the  argument,  which  is 
entirely  public  and  oral,  reopens.  Witnesses  testify  orally,  the 
presiding  judge  questions,  the  accused  replies  and  the  prosecutor 
and  attorney  proceed  orally  in  the  same  manner.  This  is  the 
present  French  system. 

Finally,  in  Anglo-American  countries  the  preliminary  investi- 
gation is  oral,  public,  and  contentious,  as  the  trial  itself.  The 
oral  phase  has  reached  its  climax. 

We  should  note,  however,  that  in  early  French  law  and  wher- 
ever the  written  form  of  criminal  procedure  dominated,  oral 
procedure  existed  first;  and  not  unnaturally  since  writing  was 
scarcely  known,  and  besides  the  parol  method  suited  the  simplicity 
and  the  character  of  the  age. 

The  course  of  the  evolution  is  easy  to  trace :  (a)  oral  criminal 
procedure;  (6)  written  procedure,  except  for  those  countries 
which  have  retained  and  seem  destined  to  retain  oral  procedure, 
as  in  England. 

But  when  these  two  stages  had  been  completed  in  certain 
countries,  as  in  France,  the  evolution  did  not  cease.  An  evident 
return  is  taking  place  towards  oral  procedure.  In  France  we  have 
imitated  the  English  system,  though  awkwardly  it  is  true.  The 
preliminary  investigation  of  the  accused  is  not  public,  but  both 
parties  are  heard  and  it  is  oral  in  part,  while  its  tendency  to  be- 
come more  so  becomes  more  marked. 

The  same  is  true  of  civil  procedure.  It  also  has  passed  through 
three  stages.  The  great  force  of  the  evolution  has  been  exercised 
in  Ihe  taking  of  testimony  by  witnesses.  After  having  been 
originally  oral  like  all  procedure,  the  taking  of  testimony  became 
secret  and  written,  like  that  provided  for  by  the  common  law  of 
France.  It  is  not  given  in  public  session,  but  before  an  adjutant 
judge,  and  is  immediately  taken  down  in  writing.  It  is  solely 
upon  this  writing  that  later  arguments  are  based  and  judgment 
rendered,  and  this  continues  to  be  true  later  before  the  Court  of 
Appeal,  which  decides  upon  the  record.  This  is  why,  if  by  ex- 
ception the  testimony  is  given  at  the  trial,  it  is  taken  down  in 
writing  in  view  of  an  appeal. 

However  there  are  some  survivals  of  the  oral  period.  In  sum- 
mary actions,  the  court  itself  hears  the  witnesses  at  the  trial  and 


ClL\P.   XXV. j  THE    EVOLUTION    OF   CIVIL   L.\W  657 

if  the  case  is  not  susceptible  of  appeal  the  evidence  is  not  taken 
down  in  writing. 

The  system  of  written  testimony  has  been  much  criticised  but 
a  discussion  over  merits  would  be  outside  our  present  work,  which 
is  merely  to  record  the  evolution.  In  line  with  the  criticism  there 
is  taking  place  a  movement  favoring  oral  evidence.  The  new 
German  Code  of  Procedure  makes  it  the  rule  and  written  evidence 
the  exception.  In  France  the  tendency  of  the  progress  in  proce- 
dural reform  is  similar. 

We  cannot  follow  out  this  parallel  but  it  exists  elsewhere  in 
procedure.  Thus  in  interrogatories  directed  to  the  parties  to  a 
suit  to  obtain  evidence  or  an  admission,  two  different  methods 
exist,  the  written  and  the  oral.  The  first  consists  of  an  interrog- 
atory upon  specific  recitals  of  fact,  the  other  of  a  summons  of  the 
parties.  The  first  has  in  practice  been  completely  abandoned; 
tlie  second,  on  the  contrary,  is  relatively  in  favor. 

Procedure,  as  a  whole,  is  generally  part  oral,  part  written,  and 
composed  of  pleadings  and  the  "formal  declarations  of  claims  by 
the  parties.  In  certain  special  cases  it  is  merely  written  and 
terminates  by  being  referred  to  one  of  the  judges  for  a  special 
opinion.  The  latter  mode  is  much  less  frequent;  almost  all 
forms  either  are  or  are  becoming  part  oral  and  part  written.  For- 
mal declarations  of  claims  are  the  only  solid  and  enduring  part 
of  the  record,  being  a  summary  of  the  pleadings  and  valueless 
except  through  them. 

But  it  is  above  all  in  the  various  methods  of  proof  that  the  an- 
tithesis between  the  oral  and  the  written  is  most  evident.  The 
three  periods  have  succeeded  one  another  in  this  way :  (a)  a 
witness  prevailed  as  against  a  document;  (6)  a  document  pre- 
vailed as  against  a  witness ;  (c)  finally  progress  is  now  marked  by 
a  return  to  the  first  principle,  at  least  in  part.  The  first  stage 
received  acceptance  everywhere,  at  Rome  and  amongst  all  the 
Latin  and  Germanic  peoples.  The  reason  was  simple:  writing 
either  did  not  exist  or  was  difficult.  It  was  not  because  of  the 
greater  accuracy  of  oral  testimony,  but  of  its  inaccuracy,  that 
at  a  still  earlier  period  the  judicial  duel  and  the  ordeal  were 
resorted  to. 

The  first  stage  continues  even  today  among  the  Germanic 
races,  notably  the  Anglo-Americans,  with  whom  it  has  been  sub- 
ject to  but  few  restrictions.  But  among  the  Latin  races  writing 
early  supplanted  oral  testimony,  which  has  been  retained  only 
in  cases  involving  small  amounts,  for  example,  under  one  hundred 


658  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

and  fifty  francs  in  France.  There  is  a  real  exception  where  there 
is  what  is  known  as  "  a  commencement  of  written  proof  "  when 
the  writing  imparts  something  of  its  own  probative  force. 

But  this  condition  has  changed  and  progress  advances  in  a 
spiral.  The  letter  of  French  law  remains  the  same,  but  the  courts 
have  everywhere  broken  in  upon  the  principle,  while  a  rival  body 
of  law  is  extending  its  influence.  The  antagonist  in  the  field  is 
commercial  law.  From  the  earliest  time  it  has  admitted  oral 
proof  with  no  limitations  as  to  the  sum  involved  or  other  condi- 
tions, except  in  the  case  of  a  certain  few  contracts.  It  has  cer- 
tainly, generally  speaking,  swept  the  civil  law  along  with  it,  for 
it  is  not  easy  to  see  why  what  is  permitted  in  the  commercial  world 
should  not  be  allowed  in  civil  life,  all  the  more  as  commerce  in- 
volves far  greater  sums  of  money. 

But  the  decisions  of  the  courts  in  their  equitable  function 
have  acted  powerfully  to  modify  the  rule.  For  example,  in  the 
summons  of  the  parties  the  courts  have  often  found  partial  ad- 
missions which  they  have  construed  as  a  "  commencement  of 
written  proof  "  by  which  the  admission  of  oral  proof  has  been  made 
possible. 

§  29.  From  Immovable  to  Movable  Property.  The  successive 
importance  of  immovable  and  movable  wealth  is  well  known. 
Now  the  more  important  of  these  forms  of  wealth  could  not  be 
regulated  in  exactly  the  same  manner  as  the  less  important  form. 
But,  as  the  relative  position  of  the  lower  form  changed,  the  law 
should  have  moved  with  it  so  as  to  maintain  harmony  between 
the  two  and  respect  the  practical  usefulness  of  each.  Unfortu- 
nately this  has  not  happened.  The  evolution  of  law  is  much  slower 
than  the  progress  of  practical  affairs,  especially  where  the  law 
has  been  codified.  The  result  is  at  times  a  complete  discord 
causing  injustice  and  injury. 

This  has  been  true  of  the  slow  progression  from  immovable  to 
movable  wealth.  We  still  suffer  from  the  want  of  harmony  in  the 
matrimonial  law.  The  system  of  general  community  evidences 
it.  All  movables  fall  into  the  community,  while  immovables  are 
excluded,  so  that  where  the  estates  of  the  husband  and  wife  are 
of  equal  value  one  of  them  might  retain  as  a  separate  estate  all 
his  property  and  acquire  half  of  the  estate  of  the  other,  who  is 
the  loser  to  that  extent.  This  results  from  the  law's  slow  re- 
sponse to  progress.  However  the  discord  is  not  absolute;  an 
evolution  is  going  on  and  as  movable  wealth  assumes  the  ascend- 
ency we  find  it  transforms  its  own  particular  rules,  even  exerting 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  659 

an  influence  upon  the  law  of  immovables  and  tending  to  impart 
to  them  its  own  qualities.  We  shall  now  briefly  examine  this 
evolution. 

Wealth  was  at  first  movable.  That  was  at  an  epoch  that 
might  be  called  pre- juridical,  when  the  land  was  not  yet  possessed. 
Such  wealth,  consisting  of  clothes,  utensils,  and  arms,  was  insig- 
nificant. Later,  though  the  people  became  agricultural,  the  situ- 
ation was  not  at  first  changed,  because  property  was  owned  in 
common  by  the  nation  or  the  family.  Private  ownership  had  to 
arise  for  immovable  property  to  acquire  its  later  importance. 

But  then  its  significance  became  excessive.  Under  the  feudal 
regime  or  otherwise  land  alone  counted,  improved  or  unimproved. 
The  whole  body  of  the  law  was  concerned  with  this  form  alone; 
and  this  was  true  of  all  nations.  Even  commerce  provided  only 
a  temporary  channel  for  wealth,  a  means  to  acquire  land. 

Later,  due  especially  to  commerce,  movable  wealth  assumed  in- 
creasing importance  and  the  two  became  parallel.  They  have 
grown  up,  governed  by  very  different  principles.  The  land  is 
fixed,  its  transfer  is  an  exceptional  event ;  it  remains  in  the  family ; 
its  inheritance  is  strictly  regulated;  the  public,  whether  under 
the  feudal  hierarchy  or  through  the  principle  of  eminent  domain, 
has  retained  a  hold  upon  it.  On  the  contrary  movable  wealth  is 
free  from  all  these  hindrances.  It  enters  into  commercial  risks, 
is  transferred  easily  and  without  formality,  and  bestows  its  own 
flexibility  upon  the  law. 

However,  to  maintain  an  equilibrium,  certain  important  forms 
of  movable  property  were  treated  as  immovables.  For  example, 
in  early  law,  offices  were  held  to  be  immovables;  the  same  was 
true  of  rent  charges,  and  this  is  the  more  important  since  personal 
rights  did  not  exist.  So  mining  rights  and  certain  other  forms  of 
property  were  immobilized. 

Later  this  mode  of  resistance  broke  down  and  the  balance 
swung  definitely  to  the  side  of  movable  property,  though  each 
class  preserved  its  own  rules.  Present  English  law  cannot  be 
studied  without  understanding  the  fundamental  distinction. 

Today  a  third  stage  appears.  Movable  property  has  in  turn 
reacted  upon  immovables.  These  are  becoming  as  mobile  as 
the  former.  Their  transmission  is  as  simple ;  the  tendency  is  to 
merge  the  two  classes.  In  practice  this  stage  becomes  apparent 
in  the  matrimonial  system,  in  the  frequency  of  the  choice  of  the 
system  of  community  limited  to  acquests  in  which  both  classes 
are  governed  uniformly.     Movables  are  treated  as  immovables 


660  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

whenever  it  is  of  advantage,  by  storage  in  general  warehouses, 
by  charging  them  with  hypothecary  Hens,  as  in  the  case  of  vessels, 
or  by  giving  them  in  pledge.  On  the  other  hand  land  is  treated 
as  movables  by  classing  land  speculation  as  a  commercial  act; 
by  making  the  hypothec  transferable  like  a  negotiable  instrument 
or  by  creating  a  hypothec  upon  one's  own  land  in  favor  of 
oneself.^ 

The  end  of  the  evolution  is  a  complete  assimilation  of  the  two 
forms  of  wealth  except  for  those  differences  which  may  survive  in 
the  case  of  certain  movables  by  reason  of  the  impossibility  of  fix- 
ing them  even  momentarily. 

§  30.  From  Reajity  to  Fiction.  The  law  was  first  made  mani- 
fest by  realities,  by  something  concrete  and  therefore  natural. 
This  stage  did  not  endure  as  long  as  one  might  first  believe.  There 
is  no  doubt  that  the  point  of  departure  must  have  been  the  family 
in  a  state  of  nature.  It  may  have  been  of  an  isolated  couple, 
of  the  type  at  once  paternal  and  maternal ;  or  it  may  have  been 
maternal  alone,  composed  of  a  group  of  men  where  maternity 
alone  was  ascertainable. 

But  soon  for  various  reasons  fiction  made  its  appearance.  The 
clan  was  a  fictitious  family,  for  the  traces  of  a  true  family  living 
in  a  state  of  nature  could  not  be  preserved  by  memory.  For  the 
same  reason  adoption  sprang  up  very  early  among  all  races  to 
complete  the  ideal  of  the  family.  It  was  a  pure  fiction.  We  have 
seen  that  it  was  customary  to  adopt  a  child  or  a  brother.  The 
latter  is  no  longer  possible.  The  Roman  testament  was  at  first 
merely  the  fictitious  adoption  of  an  heir.  The  praetorian  law  of 
Rome  quite  generally  paralleled  the  direct  action  with  the  ficti- 
tious action  moulded  upon  the  former  and  presuming  an  existent 
right.  In  the  French  law  fictions  abound.  There  are  the  legal 
prescriptions  which  presume  the  truth  of  the  very  matter  in  ques- 
tion :  the  truth  of  "  res  adjudicata",  of  ownership  after  a  certain 
period  of  possession,  the  rule  "  pater  est  quern  nuptiae  demon- 
strant",  the  presumption  of  survivorship. 

There  are  yet  more  direct  fictions  which  presuppose  states  of 
fact  which  certainly  never  existed.  First,  for  example,  there  is 
adoption.  Ordinarily  the  one  who  adopts  is  not  the  father. 
Again  there  is  the  fiction  of  retroactivity  in  partition,  as  formu- 

1  [The  advantage  of  giving  a  hypothec  upon  one's  own  land  in  one's 
own  favor  is  that  the  deed  may  be  held  until  recorded  and  then  assigned 
or  dehvered.  Recording  the  instrument  before  delivery  obviously  makes 
it  a  more  instantaneous  instrument  of  credit.  —  Translator.] 


Chap.   XXV.]  THE   EVOLUTION   OF   CIVIL   LAW  661 

lated  in  Article  883  of  the  Civil  Code.^  In  reality  each  heir  has 
taken  instantly  an  undivided  part  of  the  entire  inheritance  and 
if  the  shares  are  later  divided  it  would  not  seem  that  that  could 
operate  retroactively.  INIoreover  the  principle  is  inconsistent, 
since  the  choses  in  action  and  debts  are  divided  immediately  by 
effect  of  law,-  a  rule  which  renders  the  situation  confused  and 
illogical.  Another  remarkable  example  of  legal  fiction  is  the 
juridical  personality  accorded  to  partnerships,  and  stock  com- 
panies. In  reality  for  a  long  while  in  France  according  to  the 
civil  law,  the  partnership  was  merely  an  aggregate  of  property, 
distinct  from  joint  ownership  in  that  it  was  an  active  ownership 
whereas  the  latter  was  purely  passive.  It  was  managed,  like  all 
joint  property,  either  by  some  one  from  within  or  from  without. 
But  through  the  efforts  of  jurists  and  the  popular  tendency  to 
visualize  everything,  it  has  become  almost  a  person  of  flesh  and 
bone.  This  fiction  has  come  to  dominate  the  law  and  is  spreading. 
From  commercial  partnership  it  has  extended  to  civil  partnership 
and  to  the  unincorporated  association.  It  is  true  the  approval 
of  the  government  is  still  a  prerequisite.  But  this  last  barrier 
tends  to  fall. 

The  Roman  maxim,  "  Hereditas  defuncti  vices  sustinet  "  was 
also  a  fiction,  and  a  very  powerful  and  useful  one.  It  was  far 
preferable  to  the  opposite  doctrine  of  retroactivity  (Article  883 
of  the  French  Civil  Code).  It  carried  many  other  theories  wfth 
it  as  corollaries. 

In  political  law,  the  rule  that  the  minority  is  represented  by 
the  majority  is  a  pure  fiction  which  grew  by  degrees.  The  same 
is  true  of  the  power  of  the  majority  of  the  creditors  of  an  insolvent 
in  commercial  law. 

The  third  stage  shows  a  tendency  opposed  to  absolute  fictions, 
and  lays  open  to  doubt  the  most  uncontested  rules.  The  fiction 
"  pater  est  quem  nuptiae  demonstrant  "  tends  to  weaken  before 
proof  to  the  contrary.  The  authority  of  "  res  ad  judicata  "  breaks 
down  before  new  evidence.     The  retroactive  operation  of  parti- 

^  [When  several  heirs  inherit,  they  are  seized  of  all  the  property  by 
virtue  of  law,  holding  it  in  an  undivided  state  and  liable  for  the  debts  of 
the  decedent  and  the  distribution  of  legacies.  (French  Civ.  C.  Art.  724.) 
When  partition  takes  place  among  these  heirs,  the  law  attributes  to  it  a 
retroactive  effect  so  that  each  heir  is  regarded  as  having  never  been  seized 
of  any  part  save  the  particular  property  allotted  to  him  by  the  partition. 
(French  Civ.  C.  Art.  883.)  —Translator.] 

2  [French  Civ.  C.  Art.  1220.  There  is  considerable  doubt  whether  the 
effect  of  this  Article  is  to  partition  the  debts  and  claims  of  the  decedent 
among  his  heirs.  Cf.  Baudry-Lacantinerie,  *'  P*r6cis  de  droit  civil  "  (9th  ed. 
Paris,  1906),  Vol.  Ill,  sees.  777  and  778.  —  Translator.) 


662  PROCESS   OF   LEGAL   EVOLUTION  [Part  m. 

tion  has  numerous  disadvantages  and  after  the  rule  had  been 
extended  in  a  mistaken  spirit  of  equity,  the  present  tendency  now 
is  to  restrict  it.  The  fiction  of  survivorship  among  "  commorien- 
tes  "  has  been  abandoned  in  the  modern  codes.  Finally  the 
fictitious  personality  of  partnerships,  after  having  spread  from  the 
commercial  into  the  civil  law,  is  now  attacked  as  oversubtle ;  at 
least  the  conception  is  being  limited  and,  to  the  partnership  of 
juridical  personality,  is  contrasted  that  ''  in  gesammter  Hand." 
This  last  evolution  is  very  remarkable ;  the  tendency  is  to  return 
from  fiction  to  reality,  thus  completing  the  spiral  curve. 

Topic  II.     Intensity  of  the  Evolutionary  Movement 

§  31.  Arrestment.  We  have  been  examining  the  sociology  of 
dynamic  civil  law  with  respect  to  its  direction,  and  we  have  shown 
that  it  advances  along  a  spiral  curve  like  every  other  form  of  evolu- 
tion. But  in  dynamics  or  the  science  of  movement  there  are 
other  factors  than  direction  to  be  observed. 

Motion  is  also  susceptible  of  acceleration,  retardation,  oscilla- 
tion, arrestment  even,  and  of  resumption.  These  are  the  phe- 
nomena to  which  we  will  now  turn  our  attention. 

An  arrestment  occurs  in  certain  historical  periods  where  there 
has  taken  place  a  tightening  of  the  law.  This  generally  happens 
after  a  period  of  activity,  when  it  is  commonly  believed  that  the 
law  has  been  brought  to  its  perfection.  Thus  with  the  Justinian 
compilation  everything  seemed  to  have  been  said  and  determined 
forever.  In  effect,  the  eastern  Roman  law  scarcely  changed. 
So,  after  the  French  Civil  Code,  for  fifty  years  juristic  thought 
bowed  before  it  as  though  it  were  "  written  reason."  People  were 
content  with  a  narrow  and  servile  interpretation ;  no  one  disputed 
the  solution  of  the  lawmaker  and  his  errors  were  glossed  over. 
The  legislator  who  came  after  showed  himself  no  more  courageous 
than  the  courts.  Scarcely  a  new  law  appeared  to  rufile  the  sur- 
face. What  more  was  possible  when  perfection  seemed  to  have 
been  attained  ? 

This  period  should  not  have  been  one  of  complete  satisfaction. 
It  was  legal  stagnation.  Having  become  stationary,  the  law  soon 
no  longer  adapted  itself  to  men's  habits  nor  answered  the  needs 
of  society.  It  became  a  veritable  anachronism.  There  was  no 
progress,  merely  a  deceptive  calm;  the  living  became  dead  law. 
We  shall  see  how  external  facts  were  able  to  impart  a  new  life. 
Clearly  such  an  arrestment  might  endure  a  long  while,  a  half 


Chap.   XXV.]  THE  EVOLUTION  OF  CIVIL  LAW  663 

century  or  perhaps  several  centuries.  WTien  the  want  of  harmony 
between  law  and  custom  was  complete,  this  condition  was  sud- 
denly realized  and  the  courts  strove  to  fill  the  deficiencies,  and  by 
a  process  of  underpinning,  so  to  speak,  to  correct  and  improve 
the  law  on  every  occasion. 

§  32.  Oscillation.  Besides  the  arrestment  of  legal  evolution 
we  must  note  its  oscillation.  This  movement  is  universally  typi- 
cal of  progress ;  we  even  find  it  in  the  stellar  world.  Every  ad- 
vance is  accompanied  by  short  oscillatory  movements  leaving  the 
general  course  undisturbed.  It  is  observable  in  both  judge- 
declared  law  and  legislation.  The  Court  of  Cassation  at  times 
shrinks  before  its  own  hardihood.  Having  ruled,  through  con- 
scious fictions,  that  all  entails  are  permitted,  it  raised  new  re- 
strictions ;  having  placed  the  father  under  the  same  obligations 
as  a  guardian  in  respect  to  a  minor  child's  estate,  it  exempted  him 
in  part ;  so  also,  it  hesitated  before  the  ultimate  consequences  of 
the  "  included  marriage  portion."  The  law  has  at  times  taken 
backward  steps  but  it  has  cost  a  greater  effort,  for  its  decrees  are 
permanent.  After  the  limitations  regarding  the  rate  of  interest 
had  been  removed  they  were  replaced  after  1807,  and  then  re- 
moved once  more. 

§  33.  Regression.  The  regression  is  a  more  complete  return 
towards  the  past.  As  such  may  be  classed  the  abolition  of  divorce 
after  its  introduction  in  1791  and  its  continuation  in  the  Civil 
Code ;  the  re-establishment  of  the  "  majorat  "  (perpetual  entails 
in  favor  of  the  eldest  male  heir)  under  the  First  Empire.  Exam- 
ining the  various  historical  periods,  we  find  that  the  government 
of  the  Carolingians  was  theocratic  while  that  of  the  Merovingians 
was  not,  and  that  the  rule  of  Louis  XVI  was  more  so  than  that  of 
Henry  IV.  Titles  of  nobility  have  passed  through  three  phases. 
P'irst  they  were  hereditary ;  they  then  came  to  be  granted  for  life ; 
later  they  reverted  to  the  hereditary  stage.  This  constituted  a 
regression.  Certain  posts  held  by  license  from  the  government 
C*  offices  ministeriels  "),  which  were  property  under  the  Old  Re- 
gime became  functions  under  the  Revolutionary  law.  But  in 
1816  venality  reappeared. 

§  34.  Resumption.  The  regression  may  be  so  strong  as  to 
seem  an  extinction  and  then  be  followed  by  a  resurrection  or 
recommencement.  To  take  an  example.  After  the  barbarian 
invasions  each  race  preserved  its  personal  law  for  a  while.  Roman 
and  barbarian  law  existed  everywhere  side  by  side.  So  long  as 
this  racial  situation  continued,  the  evolution  was  not  modified. 


664  PROCESS    OF    LEGAL   EVOLUTION  [Part  III. 

But  there  eventually  took  place  a  merger  of  the  two  kinds  of  law, 
or  more  exactly  a  compression  of  each.  A  veritable  juridical 
chaos  followed ;  it  was  the  death  of  law.  Was  there  any  escape  ? 
How  could  it  come  about  ? 

In  this  amalgam,  numerous  centres  of  new  legislation  formed. 
In  other  words  a  mass  of  local  customs,  like  dissolved  crystals, 
reformed  into  new  clusters.  These  customs  resembled  but  little 
their  forerunners.  They  were  thought  to  have  been  a  fresh, 
spontaneous  growth  and  that  was  equivalent  to  saying  that  their 
evolution  marked  a  new  line,  a  recommencement.  These  in  turn 
increased,  were  generalized  and  traversed  various  stages  of  prog- 
ress.    But  the  antecedent  development  did  not  influence  them. 

The  resurrection  or  resumption  of  law  operated  in  another 
manner  as  well.  A  nation  with  a  well-developed  civilization, 
enjoying  an  orderly  legislation,  sent  forth  colonists  to  cultivate 
a  virgin  soil  in  the  solitude  of  some  uninhabited  land  or  amongst 
savage  tribes.  It  might  be  expected  that  these  pioneers  would 
retain  and  develop  the  home  civilization,  merely  adding  to  it.  Not 
so.  We  kno\^  that  they  returned  to  a  primitive  state,  rejecting 
the  latest  methods  of  agriculture  and  re-establishing  a  primitive 
co-ownership.  The  reasons  for  this  are  plain.  The  condition 
of  the  new  environment  rendered  the  methods  of  the  mother 
country  inapplicable  for  the  time  being;  like  causes  produced 
like  consequences. 

§  35.  Acceleration  and  Retardation.  Above  all  it  is  accelerated 
evolution  which  is  remarkable,  for  the  other  movements  in  the 
long  run  are  neutralized  by  the  general  movement  in  advance. 
The  law's  movement  is  generally  even,  tending  however  toward  a 
retardation,  often  quite  marked.  The  law  is  far  from  synchro- 
nizing with  the  other  lines  of  evolution.  Sometimes  it  lags  behind 
a  century  or  more.  We  would  indeed  despair  of  progress  did  no 
finger  advance  the  hand  of  time.  But  each  shock  from  without 
sets  up  an  agitation  which  accelerates  the  movement. 

The  shocks  which  energize  the  acceleration  are  of  several  kinds 
and  follow  different  principles.  They  are  analogous  to  the  laws 
of  nature  and  may  be  compared  to  the  laws  of  gravitation,  of 
chemical  combination,  and  of  mechanical  shock. 

(l)  The  force  of  gravitation  as  applied  to  law  works  at  first  through 
the  influence  of  a  foreign  law  which  draws  us  whether  we  will  or 
not.  It  is  the  principle  of  imitation  so  dear  to  Gabriel  Tarde. 
Foreign  laws  are  suggestive  because  of  their  proximity  or  of  a  real 
or  supposed  excellence.     We  introduce  them  and  they  modify 


Chap.   XXV.]  THE   EVOLUTIOX   OF   CIVIL   LAW  665 


% 


even  our  old  institutions,  for  everything  must  adjust  itself  mu- 
tually. In  France  we  have  drawn  upon  England  by  preference ; 
a  sort  of  Anglomania  has  been  at  work  in  the  most  important 
parts  of  our  law.  We  have  the  jury  and  parliamentary  govern- 
ment. Today  we  seem  to  be  aiming  toward  the  Torrens  mortgage 
system,  feminism,  new  forms  of  insurance,  commercial  and  ag- 
ricultural warehouse  receipts.  France  in  turn,  at  the  beginning 
of  the  last  century,  influenced  certain  codes  of  Europe  through  the 
force  of  her  reason.  And  lastly  the  force  of  attraction  may  be 
exercised  by  a  dead  system  of  law.  This  was  exerted  by  the  Roman 
law,  not  that  which  survived  in  certain  of  the  old  Roman  prov- 
inces, but  the  system  which  was  newly  received  in  France  and 
Germany  at  the  time  of  the  renascence.  So  the  influence  of  Greece 
was  felt  on  Rabbinical  law. 

(2)  The  second  principle  is  combination,  or  (more  exactly)  in- 
grafting. Ordinarily  it  operated  when  one  race  was  placed  under 
the  domination  of  another  race.  The  law  of  the  victor  triumphed 
entirely  or  introduced  many  of  its  principles  into  the  law  of 
the  vanquished.  Such  a  progress  might  be  affected  directly 
by  combination  or  mixture,  or  indirectly  by  disturbance.  For 
example,  by  the  wars  of  the  First  Empire  the  French  Code  was 
imposed  by  conquest  upon  several  countries  and  endured  after 
the  force  was  removed.  In  the  Middle  Ages  the  "Assizes  of 
Jerusalem  ",  that  remarkable  summary  of  feudal  law,  was  imposed 
upon  the  Orient  through  the  crusades.  Roman  law  ruled  all  the  civi- 
lized world  and  in  the  canon  law  it  has  had  an  heir  to  perpetuate 
its  influence.  Armenia  was  feudalized  at  the  time  of  the  crusades. 
The  Moslem  law  was  introduced  wherever  conquest  spread. 

Combination  has  taken  place  by  the  introduction  of  hetero- 
geneous into  homogeneous  elements,  just  as  happens  in  a  chemical 
combination  which  requires  two  substances  of  a  different  nature. 
In  law  the  foreign  element  which  penetrates  the  national  element 
is  a  heterogeneous  factor. 

(3)  The  most  curious  effect  is.  that  produced  by  the  simple  me- 
chanical principle  of  shock.  When  a  ball  is  rolled,  its  velocity 
gradually  decreases  until  it  stops.  But  if  during  its  course  it 
is  struck,  its  movement  is  continued  and  accelerated.  The  same 
phenomenon  may  be  observed  in  the  juridical  world.  And  it  is 
worthy  of  remark  that  the  external  agent  is  not  necessarily  itself 
juridical.  It  may  be  anything;  it  may  belong  to  an  order  of 
thought  wholly  difi'erent.  It  does  not  act  as  a  special  influence 
but  merely  as  a  propulsive  agent. 


666  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

* 

The  impulse  may  come  from  without  or  from  within  the  nation. 
The  former  is  war.  Its  effects  are  not  limited  to  the  law  but  also 
reach  social  conditions.  After  the  invasion  of  France  and  the 
Napoleonic  wars  a  literary  revival  took  place.  And  yet  what 
relation  is  there  between  literature  and  war  ?  A  less  accentuated 
movement,  yet  very  strong,  followed  the  defeat  of  1870.  The  new 
realistic  school  of  literature  succeeded  the  earlier  school  just  as 
romanticism  followed  classicism.  The  same  was  true  of  law.  It 
was  during  a  period  of  foreign  war  that  the  Civil  Code  of  1804 
appeared ;  after  the  Franco-Prussian  war  Germany  codified  and 
unified  her  legislation.  The  same  occurred  in  Italy.  In  France, 
it  is  true,  the  old  Civil  Code  continued  in  force  after  the  war  of 
1870;  but  France  was  defeated  and  defeats  are  less  productive. 
War  has  ever  been  a  great  disturber  of  ideas  and  institutions. 

Within  the  nation  there  is  an  agent  as  powerful  as  war  itself, 
revolution.  Its  agitation  is  so  great  that  the  whole  fabric  is 
affected,  and  even  more  so  after  the  restoration  of  calm.  After 
a  revolution  a  new  state  of  society  arises  and  nothing  is  adjusted 
to  the  new  order.  The  French  Revolution  was  followed  by  a 
total  reshaping  of  the  law.  On  every  hand  new  principles  sprang 
up  which  an  undisturbed  evolution  would  not  have  produced  for 
centuries.  The  Empire  rejected  some  of  these  after  the  "  coup 
d'Etat  ",  but  only  a  part,  because  such  a  political  measure  cannot 
rise  to  the  force  of  a  true  revolution.  The  Revolution  of  1848  was 
the  point  of  departure  for  an  entirely  new  body  of  legislation, 
which  was  suddenly  checked  by  the  Second  Empire.  The  Rev- 
olution of  1870  was  not  legally  productive  at  first,  because  the 
change  was  merely  nominal.  When  it  became  real,  especially 
from  1890,  the  spring  of  legislation  recommenced  to  flow. 

Thus  the  two  great  factors  of  the  history  of  nations,  revolu- 
tion and  war,  are  the  two  most  powerful  instruments  accelerating 
juridical  evolution. 

§  36,  Conclusion.  We  have  traced  the  important  lines  of 
legal  evolution,  as  it  has  been  influenced  by  general  forces.  We 
do  not  pretend  to  completeness.  On  the  contrary,  we  have  aimed 
only  to  give  a  few  illustrations  and  to  shed  some  light  upon  the 
sociology  of  dynamic  law  as  a  whole. 


Chapter  XXVI 
THE    PERPETUAL   EVOLUTION   OF   LAW  ^ 


§  L  General  Aspect  of  Jural  Evolu- 
tion. 

§2.  The  Evolution  of  Law  —  Ex- 
ternal and  Internal. 

§  3.  The  Fixed  and  the  Mobile 
Parts  of  Law. 

§  4.  Schematic  Representation  of 
Evolution  of  Law. 


§  5.  Abstract  and  Concrete  in 
Jural  Evolution. 

§  6.    Epochs  in  Legal  Evolution. 

§  7.  Ordinary  Path  of  Jural  Evolu- 
tion. 

§  8.  Importance  of  the  Historic 
Aspects  of  Law. 


§  1 .  General  Aspect  of  Jural  Evolution.  The  Evolution  of  Law  ? 
Or,  its  Genesis,  Metamorphoses,  Avatars,  Ontogeny,  and  Palin- 
genesis? Or,  its  Decomposition,  Detrition,  and  Transformation? 
Or,  its  Becoming  and  Parturition?  Or,  the  Continuity  of  Jural 
Re-Creation  ? 

But  why  these  tautologies?  Why  so  many  words  to  describe 
the  same  thing  ?  Because  the  idea  of  Evolution  is  still  so  confused 
that  the  attempt  to  define  it  ends  in  a  sort  of  verbal  anarchy. 

The  truth  is  that  Law  in  the  abstract  (like  all  Nature,  physical 
and  intellectual  alike)  is  in  an  unceasing  state  of  change,  in  the 
objective  world  of  its  concrete  manifestations.  In  its  very  essence 
it  is  shifting  and  protean.  Forever  it  is  in  the  process  of  unmaking 
and  of  remaking,  —  a  state  of  perpetual  becoming.  It  unrolls 
constantly  like  a  web  of  cloth  fed  out  from  the  monstrous  loom 
of  Destiny.  Out  into  space  it  projects  its  internal  energy  inces- 
santly in  new  forms.  It  is  an  unbroken  flux  of  transient  phenomena, 
each  in  turn  replaced  by  others.  It  is  that  jural  member  of  the 
social  body  which  forms  itself  by  Nature's  inexorable  logic  of 
generation. 

History  at  large  is  full  of  the  sequences  of  Law ;   and  History 

1  [By  Edmond  Picard,  Professor  of  Law  in  the  New  University  of  Brus- 
sels, Senator  of  Belgium,  and  former  President  of  the  Brussels  Bar  Associ- 
ation. 

This  chapter  is  §§  135-139,  155-157  of  the  author's  **  Le  Droit  pur", 
Paris,  Ernest  Flammarion,  1910.  The  sections  have  been  renumbered 
here. 

The  translation  is  by  John  H.  Wigmore,  co-editor  of  this  Series.) 

667 


668  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

may  be  divided  into  jural  stages  corresponding  to  the  general 
periods  of  Civilization.  When  the  Roman  Empire  of  the  West 
fell  at  last  in  the  400s  under  the  invasion  of  the  Barbarians,  the 
Germanic  law  supplanted  in  Gaul  the  Roman  law  and  relegated 
it  to  the  background ;  just  as  the  Roman  law  itself,  after  Caesar's 
conquest  of  Gaul  four  centuries  before,  had  overwhelmed  the 
Celtic  law. 

In  the  course  of  this  Evolution,  we  may  discern,  from  time  to 
time,  periods  of  slackening,  of  weakness,  of  loss  of  force,  of  arrest 
of  motion,  of  quietude,  sometimes  even  of  an  apparent  paralysis 
or  of  tremulous  retreat.  But  never  do  we  see  Death.  Astounding 
is  Law's  energy  of  renewal.  Even  when  no  reason  remains  for 
its  existence,  it  adapts  itself  to  the  metamorphoses  of  social  life. 
For,  bound  as  it  is  by  the  axiom  of  the  continuity  of  history,  what- 
ever the  breaks  in  the  chain  of  outward  events,  it  exists  as  Cause 
before  it  becomes  Effect,  and  as  Effect  before  Cause.  Its  moments 
of  stagnation  are  but  its  self-appointed  halts  for  breath.  It  is 
an  irresistible  stream,  stopped  now  or  then,  here  or  there,  by  cir- 
cumstances which  are  no  more  than  the  puny  barrier  of  a  mill-dam 
to  the  mighty  flood  which  soon  overwhelms  it  and  rushes  on. 
Like  the  mainspring  of  a  mighty  clock,  it  has  its  oscillations  and 
variations,  sometimes  so  minute  as  to  defy  detection,  but  the  per- 
manence of  its  miracle  is  that  the  innermost  spring  is  forever 
taut. 

It  is  therefore  an  error  to  believe  that  there  is  an  absolutely 
fixed  Law,  either  for  a  particular  epoch,  or  (as  the  adherents  of  a 
supreme  Natural  Law  believe)  for  some  ideal  future.  There  is 
indeed  in  statutes  a  certain  stability ;  but  they  are  only  artificial 
utterances  of  human  will,  outside  and  above  the  real  jural  life  of 
the  community,  inspired  by  it,  but  not  identical  with  it.  The 
fixity  of  statutes  is  incessantly  subjected  to  the  reaction  of  custom, 
—  that  custom  which  never  rests  in  its  operation  and  finally  ac- 
complishes its  gradual  task  of  decomposition  of  the  body  and  of 
resurrection  of  the  soul.  Law  has  never  succeeded  in  keeping 
intact  and  changeless,  —  unless  when  it  has  become  a  dead  shell  ; 
the  Roman  law,  for  instance,  which  none  now  practise ;  like  the 
ancient  Latin  and  Greek  languages,  which  are  dead,  for  no  one 
speaks  them. 

§  2.  The  Evolution  of  Law,  External  and  Internal.  This  evo- 
lution, in  affecting  the  whole,  affects  also  the  parts.  Each  par- 
ticular jural  institution  is  itself  evolving,  in  forms  individual  to 
itself,  while  it  is  being  carried  along  in  the  general  motion.     It  is 


Chap.   XXVI .]        THE   PERPETUAL  EVOLUTION   OF   LAW  669 

a  planetary  system.  The  external  history  of  jural  changes  is 
complemented  by  an  internal  history. 

French  civil  law  exliibits  an  interesting  and  excellent  example. 
In  its  general  course,  it  can  be  seen  starting  from  the  juxtaposed 
diversity  of  its  five  great  original  components  (Celtic,  Roman, 
Germanic,  and  Canon  law,  and  the  spirit  of  nationality) ;  then, 
by  the  mingling  of  these  elements,  passing  into  a  single  complex 
mass,  the  regional  Customs,  thus  realizing  a  basic  unity  while 
preserving  differences  of  detail ;  then  effacing  even  these  differ- 
ences in  the  great  unification  of  the  Code  Napoleon ;  and  finally 
this  Code  itself,  with  its  spirit  of  capitalism  and  commercialism, 
undergoes  the  pressure  of  socializing  ideas  and  is  forced  to  admit 
the  proletarian  masses  to  a  share  of  legislative  benefits  adapted 
to  their  needs.  In  the  other  aspect,  that  of  its  specific  institutions, 
we  see  the  interior  transformations.  The  law  of  Family,  Property, 
Succession,  and  the  rest,  as  the  centuries  pass  on,  exhibits  the 
transforming  influence  of  the  several  periods,  and  in  turn  reacts 
upon  those  influences. 

§  3.  The  Fixed  and  the  Mobile  Parts  of  Law.  Underneath  the 
mobility  of  Law,  there  is  nevertheless  a  part  that  is  fixed  or 
constant.  Evolution,  though  we  refer  to  it  as  something  espe- 
cially fluctuating,  is  after  all,  as  we  seek  to  discover  it  here,  pre- 
cisely this  permanent  body  of  principles.  Law  is  both  one  and 
many  ;  one,  by  nature,  but  many,  incidentally.  It  contains  a  Sub- 
stance, which  is  immutable,  and  a  Form,  which  is  forever  changing. 
Cosmic  principles  lie  hidden  beneath  the  undulating  surface  of 
historical  events.  It  is  the  combination  and  contrast  of  Being  and 
Becoming,  "  Idem  sed  aliter."  One  may  plumb  its  depths  unceas- 
ingly, but  it  is  as  inexhaustible ;  just  as  Nature  itself,  creating  yet 
devouring,  leaves  almost  nothing  extant,  from  one  millennium  to 
another,  of  that  which  formed  our  nourishment  or  our  pleasure, 
throughout  the  vast  panorama  of  living  things,  animal  or  vegetable. 

The  constant  element  in  Law  is  found  in  its  permanent  struc- 
ture. A  particular  law  cannot  be  conceived  without  the  four 
elemental  features  of  subject,  object,  relation,  and  coercion ;  any 
more  than  one  can  conceive  of  the  elementary  processes  of  arith- 
metic without  the  inherent  rules  which  govern  them.  This  part 
of  Law  belongs  among  the  great  instincts  of  every  race,  as  immu- 
tably as  the  instincts  of  Religion,  of  Art,  or  of  Language.  Law 
may  thus  be  said  to  be  emancipated  from  the  conditions  of  Time ; 
it  is  a  permanent  whole,  —  a  perdurable  rock  upon  which  the 
waves  of  circumstance  beat  in  vain. 


670  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

The  mobile  element  in  Law  is  found  in  the  indefinite  variations 
of  particular  institutions.  It  is  the  limitless  reserve  army  of  the 
law.  Inexhaustible  in  its  youthful  levies,  and  destined  to  a 
stubborn  decrepitude,  it  is  eternal  and  yet  contingent  in  its  ex- 
istence. At  first  full  of  valor  and  life,  it  is  overcome  by  fatigue, 
then  worn  out.  It  reveals  itself  in  a  rosary  of  new  formations; 
or  rather,  in  a  single  tree-trunk  sending  forth  its  many  shoots^ 
Darwin  named  this  phenomenon  Transf ormism ;  Bossuet,  the 
law  of  Change ;  Heraclitus,  the  law  of  Flux  and  Reflux.  Law's 
pace  is  now  a  walk,  now  a  gallop;  sometimes  it  turns  slowly, 
sometimes  it  suddenly  reverses  in  its  career,  again  it  leaves  the 
path  with  the  mad  velocity  of  a  kinetoscope. 

Constant  yet  mobile,  Law  is  permanent  in  its  elements,  yet 
changeful  in  its  successive  products. 

§  4.  Schematic  Representation  of  Evolution  of  Law ;  Theory 
of  Jural  Progress.  Law,  in  its  most  normal  aspect,  would  evolve 
in  harmony  with  the  epoch,  of  which  it  represents  the  welfare. 
Laws  may  often  be  seen  (in  Ihering's  phrase)  piling  up  like  the 
clouds  in  the  sky  when  it  is  overcast;  but  when,  instead,  the 
clouds  pass  rapidly  on  without  leaving  a  trace,  laws  of  this  sort 
may  be  left  aside  as  the  waste  and  debris  of  History's  labors. 

But  is  the  evolution  constantly  in  the  direction  of  progress,  i,e. 
from  the  less  good  to  the  better  ?     Is  there  a  constant  ascendency  ? 

This  question  one  must  hesitate  in  answering.  We  are  conscious, 
to  be  sure,  of  an  optimistic  tendency  to  believe  easily  in  Progress ; 
and  the  evidence  which  this  mere  instinct  offers  is  not  to  be  de- 
spised. But  there  are  many  facts  which  are  only  ambiguous  or 
puzzling  in  their  meaning.  After  all,  has  our  life  or  our  universe 
a  meaning?  Need  they  have  one?  Opinions  here  are  contra- 
dictory enough;  and  the  greatest  names  are  found  arrayed  in 
opposing  philosophies.  It  may  be  true  that  the  most  obvious 
aspect  of  the  universe  is  a  Becoming  —  that  "  perpetuum  mobile  " 
above  referred  to;  but  doubts  and  controversies  begin  when  we 
seek  to  discover  whether  among  the  various  elements  of  this 
panorama  there  are  relations  of  cause  and  effect,  —  whether 
there  is  any  organic  series,  either  progressive  or  regressive  or  both 
{i.e.  a  mixture  of  forward  and  back  again),  or  whether  it  is  all 
merely  a  kaleidoscope,  a  succession  of  phenomena  having  no  other 
bonds  between  them  than  the  events  of  a  dream. 

One  theory  advanced  is  that  of  Deviations  and  Recessions; 
another  is  that  of  alternating  Integrations  and  Differentiations. 
The  former  theory  plots  the  succession  of  events  in  a  line  con- 


Chap.   XXVI.]        THE   PERPETUAL   EVOLUTION   OF   LAW 


671 


stantly  ascending  in  space.  The  latter  theory  plots  it  in  an 
undulating  or  an  angled  line,  made  of  ups  and  downs ;  a  progress 
and  a  regress,  to  which  Pascal's  striking  description  would  apply : 
"  Two  steps  forward,  then  one  step  back ;  hesitation  followed  by 
rest ;  then  three  steps  forward  and  one  step  back ;  then  a  stop ; 
and  then  finally  ahead  again." 

Vico's  theory  represents  the  line  as  a  periplus  (the  course  of  a 
navigator  circling  a  sea-shore),  a  cycloid,  a  line  which  returns  by 
a  circle  to  its  beginning,  thence  to  start  once  more  over  the  same 
path ;   but  is  not  this  figure  a  discouraging  one  ? 

De  Greef  proposes  a  helicoid  line,  i.e.,  a  spiral  which  ascends 
straight  over  itself.  Other  philosophers  depict  evolution  as  a 
parabola,  emerging  from  the  mystery  of  the  past  and  disappear- 
ing in  the  mystery  of  the  future.  Each  of  these  hypotheses  is 
supported  by  numerous  data.  While  optimism,  incurably  hope- 
ful, tends  to  possess  the  unthinking  many,  the  philosopher  pro- 
claims a  pessimistic  interpretation,  and  takes  a  melancholy  pleas- 
ure in  pointing  to  the  setbacks  and  the  antitheses  which  abound 
in  history. 

In  Goethe's  conception  (showing  that  inspiration  of  genius  which 
is  analogous  to  the  no  less  mysterious  insight  of  instinct),  the  de- 
velopment of  the  universe  in  time  is  portrayed  in  a  symbolic 
figure  which  to  my  mind  best  takes  account  of  the  vast  varia- 
bility of  things,  especially  in  Law,  and  marks  their  prophetic 
tendencies.  His  figure  is  that  of  a  rising  spiral,  whose  curve 
broadens  as  it  rises. 


^xctfs_C^ 


De  Q-eef  s  Spiral 


Goethe's  Spiral 


672  PROCESS   OF   LEGAL   EVOLUTION  [Part  III. 

Humanity  does  indeed  return  upon  its  path ;  and  at  first  sight 
this  return  seems  to  be  as  barren  in  its  achievements  as  in  its  hopes, 
—  a  retui-n  to  the  starting-point.  But  the  return-path  leads  to 
a  higher  stage  and  has  a  broader  diameter.  Perhaps  there  is  to 
be  a  highest  point,  whence  by  regression  and  continual  descent, 
corresponding  to  the  gradual  rise,  the  maximum  development 
will  be  followed  by  a  decadence.  But  in  its  entirety  the  phenom- 
enon cannot  be  measured  in  a  single  people's  birth,  growth,  and 
death ;  we  must  include  in  our  observation  the  collective  peoples 
of  each  race.  The  torch  of  civilization  is  passed  on  from  one  to 
the  other ;  and  the  continuity  of  their  achievement  is  interrupted 
in  appearance  only  by  the  death  of  one  and  the  rise  of  the  next. 
The  pomp  and  glory  of  Greece  and  Rome  are  gone  from  our  eyes ; 
but  upon  the  same  path  which  they  trod  in  triumph  we  now  see 
their  successors  —  their  descendants,  in  truth  —  the  nations  of 
modern  Europe.  In  them  still  lives  the  Greek  and  the  Latin 
soul.  And  this  survival  explains  the  tenacious  instinct  of  the 
moderns  to  maintain  so  thoroughly,  in  education,  the  study  of 
ancient  life  and  language. 

To  illustrate :  Primitive  communal  property,  held  by  the  tribe 
or  the  family,  passed  into  the  stage  of  individual  property,  and 
now  tends  once  more  in  the  direction  of  collective  ownership. 
But  this  apparent  reversion  to  the  original  form  has  a  real  differ- 
ence ;  it  is  more  altruistic,  because  it  now  aims  to  share  the  benefits, 
not  merely, among  a  tribe  or  a  family,  but  among  the  entire  com- 
munity. Again,  when  a  member  of  the  primitive  group  died,  his 
goods  went  to  the  whole  group,  the  "  gens."  But  now,  the  same 
principle,  though  once  more  to  be  seen  in  the  movement  for  the 
abolition  of  inheritances,  would  result  in  a  transfer  of  the  goods 
to  the  whole  nation.  In  procedure,  the  decision  of  a  controversy 
over  rights  was  formerly  left  to  personal  feud,  and  afterwards  to 
the  judicial  duel.  Now,  it  is  once  more  decided  by  a  contest  and 
a  duel,  but  in  this  stage  the  combat  is  the  intellectual  one  of 
counsel  at  the  bar.  In  the  primitive  "wergeld"  of  the  Germanic 
tribes,  the  blood-price,  the  purchase  of  peace  after  wrong  done, 
was  fixed  by  a  schedule  of  different  amounts  for  different  injuries ; 
now  it  recurs  in  the  form  of  damages  or  penal  clauses  in  contracts, 
shorn  of  its  primitive  crudeness. 

And  so  one  could  review  all  the  institutions  of  the  past,  compare 
them  with  those  which  succeeded  and  are  yet  to  follow,  and  verify 
their  series  by  the  criterion  of  Goethe's  spiral.  And  the  result 
would  plainly  show  us  that,  out  of  the  chaos  of  historical  facts, 


Chap.   XXVI.]        THE   PERPETUAL  EVOLUTION   OF   LAW  673 

prodigiously  varied  though  it  be,  there  emerges  the  plausible 
conclusion  that  in  the  law,  as  elsewhere,  there  is  progress. 

§  5.  Abstract  and  Concrete  in  Jural  Evolution.  We  should 
not  confuse  the  tramformation  of  law  with  the  history  of  law. 
Together,  they  constitute  evolution  in  its  entirety.  But  the 
former  concerns  the  abstract  and  permanent  principles  of  jural 
change,  the  general  and  encyclopedic  and  philosophic  structure 
of  their  movement  in  time.  The  latter  concerns  the  concrete 
facts  and  instances  in  which  this  transformation  materializes 
and  realizes  itself,  —  its  biologic  results  in  the  different  peoples 
and  periods. 

This  life  that  moves  within  each  specific  legal  institution  must 
not  be  misconceived.  We  are  not  to  think  of  each  institution,  in 
relation  to  its  predecessor,  as  forming  a  succession  cf  fragments 
welded  one  to  the  other;  it  is  the  same  institution,  pushing  on- 
wards and  developing  in  forms  inseparable  from  that  development. 
The  branch  of  a  tree  (as  Reclus  tells  us)  is  not  simply  one  piece 
added  to  lengthen  another.  The  flower  is  not  simply  the  pro- 
longation of  the  leaf,  nor  the  pistil  of  the  stamen.  The  ovary 
differs  from  the  organs  which  produced  it ;  the  son  is  not  merely 
the  continuation  of  the  father  or  the  mother.  The  genealogic 
tree  of  humanity,  like  the  tree  in  nature,  is  a  unity  of  branches 
each  of  which  finds  its  strength  and  life  in  the  sap  which  nourishes 
the  whole.  So  in  Law,  each  new  form  needs  the  prior  one,  but 
differs  from  it ;  the  sap  is  one  and  the  same  intrinsic  power  which 
nourishes  all  the  parts  and  leads  to  their  unfolding.  In  evolution, 
all  the  phenomena  of  law  imply  at  the  same  time  both  death  and 
life ;  hence  the  opposing  views  of  their  nature  and  value.  Each  has 
it  obverse  and  its  reverse.  New  law  both  differentiates  and  con- 
tinues that  law  which  it  supplants,  in  the  endless  being  of  human 
life. 

§  0.  Epochs  in  Legal  Evolution ;  the  Mistake  of  Legislating 
en  bloc.  Law  in  each  epoch  differs;  and  this  diversity  is  the 
manifestation  of  evolution.  All  the  factors  ^  of  evolution,  operat- 
ing in  a  general  and  convergent  process,  issue  in  results  which  are 
constantly  new  yet  systematic.  Man  in  prehistoric  law  has 
little  resemblance  to  jural  man  of  to-day.  Each  period  is  an  orig- 
inal, not  a  copy  ;  each  epoch  has  its  own  law. 

The  epoch  is  not,  strictly  speaking,  itself  one  of  the  factors; 
it  is  rather  their  visible  result.     It  is  an  external  and  concrete 

^  (See  this  author's  chapter  on  "  The  Factors  of  Evolution  ",  chap.  IV 
of  this  volume.  —  Ed.] 


674  PROCESS   OF   LEGAL  EVOLUTION  [Part  III. 

mark  of  the  point  reached  in  jural  growth.  It  is  a  round  in  the 
ladder.  It  is  the  surveyor's  pole  marking  a  stride  forward,  — 
a  stride  which  had  its  necessary  support  in  the  former  one  and  it- 
self makes  possible  the  next  one.  Without  this  stage,  one  could 
not  quicken  the  arrival  at  the  next,  nor  expect  to  pass  over  some 
obstacle  by  a  digression  of  twice  or  four  times  the  distance. 

The  epoch  influences  law,  not  only  by  its  advance,  but  also  by 
its  delay.  It  is  both  whip  and  brake  for  the  law's  stagecoach. 
When  a  people,  therefore,  has  arrived  at  a  certain  point  in  the 
evolution  of  its  law,  it  is  impossible  to  change  that  law  at  a  single 
stroke.  Conversely,  it  is  impossible  to  hold  it  fast  and  to  chain 
it  at  that  point. 

The  mere  enumeration  of  the  most  noticeable  factors  that  con- 
trol evolution,^  their  multiplicity,  the  difficulty  of  forecasting  or 
even  of  detecting  their  influence,  the  fateful  operations  of  their 
intricate  mechanism,  —  these  considerations  teach  us  plainly 
the  error  of  believing  that  a  complete  system  of  law  can  be  newly 
devised  and  established  by  some  ambitious  legislator.  Rousseau 
in  his  conceit  drafted  an  entire  constitution  for  Poland  (where, 
to  increase  the  paradox,  none  had  before  existed).  The  idealist 
leaders  of  Socialism  —  Saint-Sinjon,  Fourier,  Cabet,  and  the  rest 
—  believed  that  they  were  erecting  monuments  of  wisdom  which 
would  defy  the  storms  of  centuries,  —  instead  of  fragile  and  pic- 
turesque structures  of  the  imagination  which  (like  the  temporary 
buildings  of  an  international  exposition)  were  torn  down  after 
the  brief  popularity  of  their  day.  The  same  delusion  leads  us, 
in  history,  to  credit  Solon  and  Lycurgus  and  Moses  with  the 
spontaneous  creation  of  legal  systems;  yet  these  sages,  far  from 
inventing  novelties,  really  achieved  no  more  than  Justinian  or 
Napoleon,  i.e.  they  gave  a  system  and  coordination  to  jural  facts 
already  existing  and  adapted  them  to  the  epoch.  Similar  sophis- 
tries misled  the  French  Revolutionists;  but  the  speedy  and  ir- 
resistible revival  of  many  of  the  abolished  institutions  revealed 
the  vanity  of  the  illusion.  Law  cannot  be  revised  by  the  mere 
fiat  of  decrees  enacting  theories.  Law  must  rise  from  below, 
like  the  plant  from  its  seed  —  not  descend  from  above,  like  the 
thunderbolt  from  the  sky. 

A  people  can  assimilate  only  such  a  law  as  could  have  emanated 

from  that  people  itself.     Artificial  fertilizations  of  it  never  succeed. 

The  dictatorial  idea  of  law  is  exactly  opposite  to  the  truth.     Law 

exudes  from  the  people  itself,  —  the  resultant  of  convergent  and 

1  [Ante,  chap.  IV  of  this  volume.  —  Ed.] 


Chap.   XXVI.]         THE   PERPETUAL   EVOLUTION   OF   LAW  675 

commingled  factors,  some  palpable  and  some  invisible;  but  the 
dictatorial  conception  of  law  would  have  it  dart  out  metaphysically 
from  one  or  more  master  minds  and  impose  itself  on  the  com- 
munity. Such  a  process  is  impossible ;  for  it  is  contrary  to  Nature. 
In  law,  as  in  art,  one  must  ''  please  the  public." 

The  formulation  of  positive  law  is  similar  to  the  instinctive 
activities  of  bees  or  ants ;  thousands  of  beings  are  laboring  to  the 
same  end,  without  concert  or  plan,  and  yet  governed  in  their  puny 
energies  by  a  destiny  as  rigid  as  that  of  the  stars  in  their  glory. 
We  like  to  believe  that  law  is  a  product  of  intelligence  and  volition. 
Perhaps  this  illusion  has  been  implanted  in  us  by  the  cosmic 
engineer,  as  a  necessary  cog  for  that  purpose.  Certain  it  is,  at 
any  rate,  that  human  personality  possesses  a  jural  energy  inde- 
pendent of  any  one  of  the  specific  legal  systems  —  a  power  that 
is  the  matrix  of  them  all.  Law  is  a  natural  function  common  to 
humanity,  not  a  special  privilege  for  a  few  predestined  ones. 
We  all  perform  our  several  shares  in  this  tremendous  jural  task, 
without  quite  understanding  what  our  role  is.  He  who  believes 
that  he  alone  was  endowed  with  an  aptitude  for  it  should  reflect, 
with  chagrin,  that  his  misguided  efforts  are  merely  despoiling 
society  at  large,  for  his  own  personal  gain,  of  one  of  its  most 
obvious  and  most  vigorous  talents. 

§  7.  Ordinary  Path  of  Jural  Evolution.  When  we  attempt 
to  synthesize  the  details  of  any  particular  jural  evolution,  its 
path  ordinarily  appears  to  proceed  from  a  so-called  savagery, 
through  a  barbarism,  to  a  civilization.  These  stages  represent 
the  dawn  of  law,  its  morning,  its  noon,  and  sometimes  its  dusk. 
A  typical  example  may  be  seen  in  property  in  goods.  It  starts 
with  a  family-community  of  ownership,  then  becomes  a  village 
community  (or  horde,  clan,  tribe),  and  emerges  in  a  national 
community  of  ownership  (as  in  the  modern  collectivist  theory) ; 
it  has  passed  from  the  one  to  the  other,  with  individual  ownership 
as  a  lateral  and  intermediate  form.  And  the  latter  apparently 
serves  to  pave  the  way  for  absorption  by  the  State  and  its  succes- 
sors, in  that  it  leads  to  an  excessive  capitalist  concentration  of 
property  in  the  hands  of  individuals  or  of  corporations. 

Comte  advanced  a  different  formula,  not  specifically  for  law, 
but  for  social  evolution  as  a  whole.  Humanity  started,  he  main- 
tained, in  the  religious  stage,  passed  on  through  the  metaphysical, 
and  arrived  finally  at  the  positivist  or  realistic  stage.  This  prin- 
ciple does  indeed  find  verification  in  most  instances ;  except  that 
it  appears  more  applicable  to  the  thinking  elite  than  to  the  masses ; 


676  PROCESS   OF    LEGAL   EVOLUTION         ^  [Part   III. 

for,  in  the  latter,  the  metaphysical  stage  can  hardly  be  distin- 
guished. The  truth  is  that  the  masses  are  always  close  to  the 
realities  of  life,  —  in  other  words,  they  are  always  positivist,  in 
differing  degrees  of  intensity,  especially  in  the  law;  the  strong 
element  of  religiosity  which  they  possess  at  the  outset  arises  from 
their  incapacity  to  comprehend  and  measure  the  mysterious  and 
terror-striking  forces  which  govern  the  world;  for  the  primitive 
mind  is  keenly  alive  to  their  pressure  without  understanding 
their  nature. 

In  history,  then,  Law  does  not  repeat  itself,  except  for  its  per- 
manent elements,  which  are  abstract  or  universal.  Its  various 
stages,  forever  changing,  rest  on  one  great  immovable  base.  Its 
changes  follow  the  new  interests  and  necessities  of  life.  The 
jural  elements  keep  rising  one  out  of  the  other.  The  organism 
develops  by  reason  of  its  inward  energy.  Its  birth  and  growth 
follow  the  uterine  and  embryonic  life  of  the  rudimentary  jural 
principles.  There  is  a  succession  of  eliminations  and  assimila- 
tions, like  the  secretions  and  exudations  of  physiology.  In  law, 
as  in  all  evolutions,  the  death-shroud  of  departing  principles  serves 
as  the  swaddling-cloth  of  the  new  born,  —  death  and  life  succeed- 
ing each  other  every  moment. 

But  these  jural  periods  are  not  necessarily  of  the  same  duration 
in  all  systems.  Instead  of  a  synchronism,  there  is  a  certain 
heterochronism.  Usually  this  takes  the  form  of  an  acceleration, 
i.e.  the  periods  are  constantly  shorter  as  the  development  pro- 
ceeds. This  feature  may  be  seen  in  the  vast  productivity  in  legal 
systems  to-day,  as  compared  with  the  slow  and  moderate  pace  of 
earlier  systems.  Never  before  did  the  wheel  revolve  with  such 
velocity. 

Sometimes,  indeed,  the  intermediate  stages  escape  our  observa- 
tion. Hiatuses  appear.  It  is  the  task  of  science  to  fill  these  by 
its  hypotheses.  Sundry  ingenious  attempts  at  reconstruction 
bear  witness  to  the  fulfilment  of  this  task,  especially  in  the  realm 
of  primitive  law. 

But  we  must  look  upon  the  records  of  former  jural  stages  merely 
as  documents  to  be  consulted,  not  as  models  to  be  followed.  At- 
tempts at  the  resurrection  of  earlier  types  are  as  dangerous  and 
as  futile  in  the  domain  of  law  as  in  that  of  art.  The  beauteous 
things  of  the  dead  past  may  excite  our  admiration  and  enthu- 
siasm, but  should  not  tempt  us  to  restore  them.  That  they  lie 
cold  and  lifeless  in  their  tombs  is  to  our  gain,  not  our  loss.  This 
at  least  we  may  assert  for  the  Europeo-American  race,  ever  a 


Chap.   XXVI.]        THE   PERPETUAL  EVOLUTION   OF   L.\W  G77 

progressive  one.  Moreover,  it  is  not  merely  our  ideas  that  have 
progressed,  but  probably  (as  modern  research  shows)  our  very 
brain-matter  has  changed  and  become  more  sensitive  and  our 
cranial  dimensions  have  enlarged.  How,  then,  with  these  in- 
struments subjectively  altered,  can  we  expect  to  comprehend 
accurately  the  significance  of  tasks  achieved  by  our  ancestors 
with  different  brain-tools  long  since  in  the  grave? 

Posterity,  then,  will  always  have  a  different  conception  —  pos- 
sibly a  better  one  —  than  contemporaries  of  the  reasons  for  the 
law  of  a  prior  epoch.  The  penalties  of  criminal  law  were,  at  the 
outset,  nothing  but  a  satisfaction  of  the  sentiment  of  vengeance, 
the  '*  talio  ",  a  brutal  reflex-action  ;  later,  they  took  on  the  char- 
acter of  expiation,  ensuring  to  the  offender  peace  after  death, 
and  accepted  as  such  by  him  with  resignation  and  even  with  glad- 
ness ;  to-day,  they  are  looked  upon  merely  as  a  measure  of  restraint 
and  of  social  defence,  meant  to  influence  and  curb  in  advance  the 
impulse  to  crime.  So,  too,  the  Crusades,  in  the  time  of  Peter 
the  Hermit  and  St.  Louis,  were  aimed,  in  the  thought  of  men  of 
those  days,  solely  at  the  deliverance  of  the  holy  places  of  our 
religion,  in  testimony  of  the  touching  story  of  God  who  became 
man,  of  his  birth  and  cruel  death ;  but  to-day,  history  reveals 
them  as  an  episode  in  the  immemorial  struggle  of  Aryan  against 
Semite,  destined  to  ensure  the  mutual  independence  of  the  two 
races.  And  when  Philip  H  of  Spain  expelled  the  last  of  the  Moors, 
he  was  moved  only  by  religious  fanaticism ;  but  we  are  now 
beginning  to  understand  that  this  was  simply  the  last  belated 
and  futile  effort  of  Spain  to  cleanse  itself  of  those  African  infiltra- 
tions which  forever  destroyed  the  purity  of  its  Aryan  stock  and 
apparently  have  led  to  its  irremediable  decadence,  from  the 
European  point  of  view. 

§  8.  Importance  of  the  Historic  Aspects  of  Law.  To  sum  up : 
Out  of  that  vast  cosmic  reservoir  in  which  Law  lies  latent  in  a 
potential  stage,  arises  constantly  the  Law  in  its  positive  stage, 
changing  as  history  changes.  This  inexhaustible  reservoir  of 
indestructible  energy  supplies  the  entire  jural  nourishment  of 
the  human  race,  without  ever  slacking,  throughout  the  diversity 
and  breadth  of  space  and  time.  Law  diffuses  itself  thence,  through 
human  brains,  with  the  same  regularity  and  inevitableness  as  a 
shadow  lengthens  along  a  wall.  It  flows  into  the  realities  of 
history,  distributing  itself  in  varied  quantfty  and  quality,  and  ex- 
panding constantly  in  its  action,  like  all  the  other  cardinal  forces 
of  Nature.     Law  exhibits  forever  new  depths,  which  our  minds 


678  PROCESS   OF  LEGAL  EVOLUTION  [Part  III. 

strive  to  penetrate.  History  is  full  of  guesses  and  hypotheses. 
Some  are  verified;  others  are  found  to  be  false  and  disappear. 
But  Law's  activity  never  tires  and  never  exhausts  itself. 

All  of  which  demonstrates  the  importance  of  jural  history  for 
the  valuation  and  criticism  of  to-day's  law  and  for  our  prepara- 
tion to  meet  its  new  changes.  Since  it  is  a  continuous  new  crea- 
tion, how  can  we  comprehend  the  coming  parts  of  the  series  if 
we  do  not  understand  the  prior  links?  With  a  clear  view  of  the 
past,  we  are  well  instructed  in  the  future.  We  must  sense  the 
evolution  of  Law.  Otherwise,  our  knowledge  lacks  both  clearness 
and  permanence.  Our  work  is  done  at  random,  amidst  the  dark- 
ness of  our  guesses,  on  an  ocean  of  chimeras. 

Yet  we  cannot  expect  to  forecast  with  certainty  for  more  than 
a  brief  space  into  the  future.  The  past  of  Law,  as  it  is  known  to 
us,  is  too  short;  the  visible  curve  of  jural  forces  is  but  a  small 
fragment  of  the  whole.  Its  beginning  and  its  end  are  alike  wrapped 
in  obscurity.  No  positive  projection  of  its  entirety  can  be 
calculated.  History  (as  some  sceptic  has  wisely  said)  may  be 
perhaps  no  more  than  a  momentary  deviation  which  we  mistake 
for  a  part  of  the  normal  line  of  evolution.  Is  Law's  path,  as  we 
see  it,  merely  that  of  a  wandering  comet,  or  that  of  a  harmonious 
planetary  system?  Law,  and  the  innumerable  legal  systems 
which  go  to  make  it  up,  abounds  in  accidents  (as  languages  do) 
which  deviate  from  logical  symmetry.  The  irrational  (or  what 
seems  to  us  as  such)  plays  a  vast  part  in  the  operations  of  the  cos- 
mos, and  is  the  most  misleading  of  its  enigmas. 

But,  at  any  rate,  we  may  trust  that  the  future  holds  in  reserve, 
as  a  continuation  and  natural  blossoming  of  the  jural  institutions 
of  the  present,  better  forms  than  any  of  those  known  to  us,  — 
better  perhaps  than  those  of  any  Utopia.  We  may  look  forward 
to  new  days  on  other  planets,  inhabited  by  other  humanities, 
to  undisclosed  riches  of  jural  force,  —  a  force  which  never  is  para- 
lyzed in  disease  or  death,  —  which  leads  to  a  purpose  never  finite 
and  fixed,  but  ever  moving  onwards.  The  majesty  of  this  force 
makes  for  the  philosophy  of  law  its  kinship  with  poetry  as  well 
as  with  science.  Petty  minds  may  be  terrified  by  these  overwhelm- 
ing prospects,  and  may  see  in  them  the  omens  of  catastrophe. 
But  in  truth  they  signify  that  normal  and  divine  equilibrium  of 
Law's  evolution,  which,  like  all  Nature's  evolution,  only  inspires  in 
great  souls  the  solemn  gladness  recorded  in  the  lines  of  Lucretius : 

"  Cedit  enim  rerum  extrusa  vetustas 
Semper,  et  ex  aliis  aliud  reparare  necesse  est." 


INDEX 


[References  are  to  pages] 


Abban,  II,  424  f . 

Abortion,  general  practice  of,  among 

the  Kaffirs,  i,  316,  318;   in,  228, 

230  f.     See  Infanticide. 
Accadian  Laws,  i,  385  f. 
Accident,   no   primitive   distinction 

from  Design,  ii,  140  f. 
AccusatioD,     false,     punished      by 

death,  i.  387   '^Bab.) ;  of  sorcery, 

I,  389  (Bab.) ;  of  adultery,  i,  413 
(Bab.) ;  against  absent  person,  i, 
504  (Lex  Sal.). 

Actio,  famosa,  ii,  358;  legis,  i,  620 
f.,  II,  516  f.,  n,  586  f.,  ii,  597,  ii, 
670  f . ;  per  judicis  postulationem, 

II,  672 ;  per  condictionem,  ii,  673 
f . ;    per    manus    injectionem,    ii, 

674  f. ;  per  pignoris  capionem,  ii, 

675  f . ;  redhibitoria,  ii,  434 ;  Ser- 
viana,  in,  623. 

Actiones  famosae,  ii,  358. 

Acts,  distinction  of  intentional  and 
unintentional,  not  recognized  in 
primitive  society,  ii,  129  f. ;  no 
distinction  between  accident  and 
design,  ii,  140  f. ;  formal  charac- 
ter of,  II,  645  f. ;  punishment  of, 
indiscriminate,  in,  186. 

Adams,  Brooks,  Views  of  civilization 
and  decadence,  in,  11. 

Adelphiarehy,  i,  265  (Son  Indians). 

Adhramire,  in,  601. 

Adoption,  i,  149  (Iceland);  i,  249 
(Eskimos);  i,  267  f.  (Sen  In- 
dians) ;  I,  281  (Wyandots) ;  pre- 
cedes marriage  among  Wyandots, 

I,  284  ;  of  prisoners,  i,  290  (Wyan- 
dots) ;  I,  291  (Wyandots) ;  regu- 
lations among  the  Fantis,  i,  326 ; 
in  Babylon,  i,  426  f . ;  laws  of 
Gortyn,  i,  462;  deed  of,  i,  683 
(Bab.  Doc.) ;  of  captive  children, 
n,  80,  II,  130  note;  of  murderer 
into  the  clan,  ii,  82;  religious 
character  of,  n,  105 ;  fiction  of,  its 
importance  for  civilization,  ii, 
176;    and   artificial  relationship, 

II,  341     f.     (Kohler);     religious 


basis  of,  II,  344  f.  (Fustel) ;  effect 

of,  on  inheritance,  ii,  548  f.,  ii, 

561 ;   fiction  of,  in,  660. 
Adstantes,  ii,  653. 
Adultery,  unknown  in  Sparta,  i,  69 

(Plutarch) ;  rare  among  Germans, 

I,  105  (Tacitus) ;  offense  on  part 
only  of  wife,  i,  317  (Kaffi.rs) ;  paci- 
fication fine  for,  i,  335  (Fantis) ; 
wife  cast  into  river,  i,  386  (Ac- 
cadia) ;  punished  by  drowning,  i, 
412  (Bab.) ;  accusation  of,  by 
husband,  i,  413,  n,  303  note 
(Bab.) ;  ordeal  to  prove  inno- 
cence of,  I,  413  (Bab.) ;  i,  496,  ii, 
316  f.  (Manu) ;  adulterer  must 
provide  another  wife,  i,  515 
(iEthel.) ;  among  savages,  ii, 
272 ;  in  Athens,  ii,  328 ;  in  China, 

II,  319 ;   in  Egypt,  ii,  310  note. 
Aetleidung,  n,  342. 

Affatomie,  ceremony  of,  i,  506  (Lex 
Sal.) ;    II,  653  (Heusler). 

Agency,  i,  406  f.  (Bab.). 

Ager  privatus,  in,  249. 

Ager  pubUcus,  in,  249 ;   in,  614. 

Agnates,  succession  of,  i,  466  (xii 
Tab.);  ii,  213,  n,  537;  distin- 
guished, II,  189 ;  II,  197  f . ;  n,  297 
f.;  II,  354;  ii,  381,  385,  391;  ii, 
487. 

Akarita,  in,  136,  138. 

Alcheringa,  the,  i,  219,  226,  227,  229, 
230  note,  233,  235. 

Aliens,  legal  position  of,  in  ancient 
world,  n,  110;  relation  of,  to 
commerce,  ii,  407,  415,  420; 
market  protection  of,  n,  428  f. ; 
use  of  ordeal  by,  n,  613. 

Allmend,  in,  549,  551. 

Allod,  II,  391 ;   n,  564. 

Althing,  the,  i,  124,  137  f.,  142  f., 
148  f.,  155  f.,  179  f. ;  law  and  cus- 
tom of,  I,  197,  201;  as  a  tribal 
assembly,  n,  127. 

Ambachten,  in,  565. 

Ambilian  marriage,  in,  106  f. ;  rela- 
tion of,  to  relationship  systems,  in, 
109  f . ;  relation  to  domestic  power, 


679 


680 


INDEX 


III,  112;  relation  to  property,  iii, 
112;  relation  to  obligations,  iii, 
113;  relation  to  inheritance ,  iii, 
117;  relation  to  political  institu- 
tions, III,  119;  relation  to  penal 
institutions,  iii,  119;  relation  to 
procedural  institutions,  iii,  121 ; 
causes  of,  iii,  124  f. ;  connection 
of,  with  gentilic  society,  iii,  126 ; 
summary  of  relations  to  other 
jural  institutions,  iii,  127  f . 

Analogy,  value  of,  ii,  171  (Maine). 

Anaya,  ii,  430,  iii,  497  f. 

Ancestors,  worship  of,  succeeded 
totemism,  ii,  88. 

Andamanese,  administration  of  jus- 
tice, II,  130 ;  family  relations,  ii, 
243,  251 ;  penal  law,  ii,  130  note. 

Anglo-Normans,  forms  and  organs 
of  law  among,  iii,  155. 

Animals,  injuries  by,  laws  of  Solon, 
I,  86  (Plutarch) ;   i,  436  f.  (Bab.) ; 

I,  467  (xii  Tab.) ;  i,  488  (Manu) ; 
laws  concerning,  i,  549  f .  (Welsh) ; 
punishment  of,  ii,  143 ;  societies 
of.  III,  268  f. ;  mammals,  iii,  275 ; 
societies  of,  analogous  to  primitive 
human  societies,  iii,  283  f . 

Antenuptial  debts,  i,  417  (Bab.). 

Antomosia,  ii,  624  f . 

Appius  Claudius,  iii,  189. 

Arbitration,  i,  145,  164,  208  (Ice- 
land) ;  I,  23  (Homer) ;  by  the 
elderwoman,  i,  259  (Seris) ;  early 
courts  of,  priestly,  ii,  575 ;  func- 
tion of  Pontifices  in,  iii,  198 ;  and 
guaranty  in  the  origin  of  law,  iii, 
485  f. 

Archaeology,  and  the  village  com- 
munity, II,  397. 

Archon,  ii,  580. 

Areopagus,  council  of,  i,  591 ;  gods 
as  judges  of  court  of,  i,  601. 

Aristocracies,  as  depositaries  of  law, 

II,  167  (Maine). 

Aristotle,  ideal  code  of,  ii,  93 ;  ii,  99, 
102 ;  the  family  as  the  unit  of  the 
State,  II,  196;  iii,  364  f . ;  on 
slavery,  iii,  468. 

Arrha,  ii,  652  f. 

Artificial  relationship,  gossipry,  i, 
192  (Iceland) ;  survey  of,  ii,  341. 
See  Adoption. 

Ashkeray,  ii,  423  f. 

Assembly,  the,  i,  3,  4,  9,  30,  32,  57 
(Homer) ;  i,  101  (Tacitus) ;  i, 
124,  137,  142,  148,  155,  179,  197, 
201 ;   II,  127  (Iceland) ;   ii,  596. 

Assessors'  courts,  ii,  579. 

Asturaro,  on  the  economic  factor  of 
law.  III,  184,  192. 

Asylum,  i,  60  (Plutarch) ;  in,  608. 
See  Sanctuary. 


Atavism,  as  a  factor  of  legal  evolu- 
tion, III,  176  (Picard). 

Atkinson,  ii,  216  f. 

Atonement,  i,  11  f.,  17  (Homer); 
for  accidental  killing,  i,  467  (xii 
Tab.) ;  for  murder,  in  the  clan,  ii, 
82 ;  no  money,  for  death  of  Roman 
citizen,  ii,  125.  See  Blood  Re- 
venge and  Composition. 

Attorneys,  unknown  in  ancient  Ger- 
manic law,  II,  644 ;  in  China,  etc., 
II,  702,  704. 

Auflassung,  in  pledge,  ii,  461,  467, 
468  f. 

Augury,  relation  of,  to  ordeal,  ii,  676. 

Austin,  criticism  of  his  theory  of 
law,  II,  165  (Maine). 

Avenger  of  Blood,  ii,  141  f.  See 
Blood  Revenge. 

Award,  in  arbitration,  i,  166,  208  f. 
(Iceland) ;    i,  23  (Homer). 


Babylon,  laws,  i,  387  f. ;  trials,  i, 
581  f. ;  documents,  i,  680  f . ; 
family  institutions,  ii,  301  f . ; 
penal  justice,  ii,  134,  136,  139 
note,  142;  commercial  law,  ii, 
413,  416  note,  419 ;  procedure,  ii, 
654. 

Bachof en,  i,  204 ;   iii,  353. 

Bacon,  m,  316. 

Ba^ehot,  in,  318,  338 ;  on  the  Use 
of  Conflict,  III,  451  f . ;  the  mys- 
tery of  progress,  in,  451  f . ;  in, 
554. 

Bailment,  i,  435,  438  (Bab.) ;   i,  483 

■    f.  (Manu). 

Bancroft,  in,  380. 

Banking,  origin  of,  n,  412  f. 

Barbarism,  patriarchy  and  nomad- 
ism concur  in,  n,  74;  definition 
of,  II,  83;  classified,  in,  23,  47 
(Morgan) ;  invention  of  pottery 
separates,  from  savagery,  in,  50 
(Morgan) ;  in,  52  f.  (Sutherland). 

Barter,  i,  8  (Homer) ;  of  slave 
won  at  gambling,  i,  108  (Taci- 
tus);  origin  of,  n,  407  f.  (Gold- 
schmidt) ;  survey  of  law  of,  n, 
435  f .  (Kohler) ;  in  primitive  soci- 
ety, II,  439  f.  (Somld) ;  in  boy 
society,  in,  343  f.  (Johnson) ;  in, 
632. 

Bartolus,  in,  645. 

Basutos,  villages  of  described,  ii. 
401  f. 

Battle,  wager  of,  i,  130,  135,  138 
(Iceland) ;  marriage  by,  n,  81  ;  a 
refinement  of  the  blood  feud,  n, 
148,  280 ;  n,  588 ;  not  widespread. 
Ti,  691. 


INDEX 


681 


Beneficium  excussionis,  ii,  479. 

Bentham,  criticism  of  his  theory  of 
law,  II,  165  (Maine) ;  criticism  of 
fictions,  II,  176;  criticism  of  idea 
of  sovereignty,  in,  492. 

Bernhoft,  ii,  59 ;    ii,  205. 

Bet,  element  of,  in  pledge,  ii, 
457  f. 

Bill  of  exchange,  formalism  of,  ii, 
649. 

Biologic  factor,  in,  267  f. 

Bio-psvchical  cause  of  law,  iii,  195. 

Blacks*tone,  ii,  594,  597 ;   in,  216. 

Blood  feud,  purchase  of,  i,  17,  18 
(Homer) ;  i,  139  f.,  143  ;  followed 
by  the  next  of  kin,  i,  144,  150  f., 
152  f.,  177;  I,  158,  162,  164  f. ;  i, 
167  ;  I,  207  f .  (Iceland) ;  an  alter- 
native remedy  among  Wyandots, 

I,  287  f . ;  a  religious  duty,  n,  124 ; 
as  regulated  vengeance,  n,  133  f . ; 
relation  to  economic  facts,  in,  184. 
See  Blood  Revenge. 

Blood  fraternity,  i,  290  (Wyandots) ; 

II,  341,  343. 

Blood  price,  i,  23  (Homer). 

Blood  revenge,  i,  55  (Homer) ; 
among  the  Germans,  i,  106  (Taci- 
tus);  I,  167  f.  (Iceland);  chief- 
tainry  prevents,  ii,  97  (Kohler) ; 
obligation  of,  in  primitive  society, 
II,  133;  avenger  of  blood  in  He- 
brew law,  n,  141  f. ;  n,  145 ; 
blood  fraternity  (q.v.)  as  starting 
point  of,  n,  343;  for  death  of  a 
merchant,  n,  423  f. ;  among  the 
Semites,  ii,  655  f. ;   in,  412. 

Bonorum  possessio,  n,  571. 

Bossuet,  in,  380. 

Bote,  I,  513  f.  (JEthel);  certain 
offenses  not  subject  to,  n,  135  f . ; 
distinguished  from  \\'ite,  n,  147. 

Boundaries,  god  of,  i,  77;  n,  428; 
law  of,  I,  488  f.  (Manu) ;  estab- 
Hshed  by  religion,  n,  105;  of- 
fender against,  sacer,  n,  132  note ; 
II,  368  f. 

Bracton,  n,  595;   in,  376. 

Brehm,  in,  276,  279,  285,  308. 

Brehon  Laws,  retaliation  in,  n,  123 ; 
tribal  assembly  in,  n,  125  f. ;  dis- 
tress in,  II,  599  f . ;  compared  to 
law  of  Ossetes,  in,  169 ;  compared 
with  Roman  law,  in,  420. 

Briborv,  in  lawsuits,  i,  148  (Ice- 
land); I,  390;  I,  450  f.  (Egypt); 
II,  665  (Bab.). 

Bride  price,  i,  33,  48  (Homer) ;  n, 
302  f. 

Bridges,  in,  556. 

Brokers,  origin  of,  n,  407  f.  (Gold- 
schmidt) ;  evolution  of,  n,  425 
(Koehne). 


Brother  and  sister  marriage,  i,  40, 
41  (Homer) ;    n,  308  (Egypt). 

Bryce,  on  the  Influence  of  National 
Character  and  Historical  Environ- 
ment, in,  369  f. 

Biieher,  II,  446,  448;  classification 
of  societies,  in,  8,  38  f. 

Buckle,  III,  198,  203,  352. 

Building  contractors,  regulation  of, 
I,  433  (Bab.). 

Burden  of  proof,  on  defendant  in 
primitive  law,  i,  291  (Wyandots) ; 
I,  302,  314;   n,  695  (Tarde). 

Biirgergemeinde,  in,  549  f. 

Burial,  law  of  Solon  regulating,  i,  84 
(Plutarch) ;  ceremonies  of,  in 
Gaul,  I,  92  (Caesar) ;  among  the 
Germans,  i,  108  (Tacitus) ;  con- 
tributions to  pay  for,  i,  331  (Fan- 
tis);   I,  468  (xn  Tab.).^ 


C 


f. 


C^SAR,  commentaries, 

Camorra,  in,  239. 

Capio,  I,  381 ;   n,  606. 

Capital,  investment  of,  i,  126,  127, 
132  (Iceland) ;   i,  406  (Bab.). 

Capitis  deminutio,  n,  353  (Sohm). 

Capito,  III,  365,  420. 

Caravens,  history  of,  ii,  409  f. 

Carlyle,  in,  462. 

Carriers,  regulation  of,  i,  408,  434 
(Bab.);   i,  481  (Manu). 

Cartularium  Langobardicum,  ii,  652, 
654. 

Case-law,  Kaffir,  i,  299,  314. 

Caste  system,  i,  470  f .  (Manu) ;  ii, 
172;   II,  441  f. 

Catalogue  of  peoples,  in,  3  f. 
(Steinmetz). 

Causa  civihs,  in,  628  f. 

Cautio,  II,  516 ;   in,  624. 

Ceremonial  acts,  i,  223  f .  (totemic) ; 
I,  283  (tribal  council) ;  i,  307  f. 
(marriage) ;  i,  381  f.,  507  f.  (en- 
forcing payment) ;  i,  506  (trans- 
fer of  property) ;  i,  510  (Chrene- 
cruda) ;  i,  660  (ordeal) ;  n,  499, 
506  (contract) ;  n,  518  (sale) ; 
n,  567  (will);  i,  620  f.,  n,  587 
(procedure) ;  origin  of,  n,  649  f. ; 
in,  602  f. 

Cessio  in  jure,  n,  522;  in,  623, 
631. 

Chamberlain,  on  the  Race  Factor  in 
Legal  Evolution,  in,  355  f. 

Champion^re,  Simon  de,  on  enmity 
of  lawyers  to  working  classes,  in, 
261. 

Chefeites,  ii,  50. 

Cherry,  Richard  R.,  on  Primitive 
Criminal  Law.  ii,  122  f. 


682 


INDEX 


Chieftainry,  among  the  Germans,  i, 
102  (Tacitus) ;  i,  123  f.,  168,  176, 
180  (Iceland) ;  i,  284  f .  (Seris) ;  i, 
281  f.  (Wyandots);  i,  292  f. 
(Kaffirs) ;  in  the  clan  group,  ii, 
78 ;  cultural  importance  of,  ii,  96  f . 
(Kahler) ;  in  primitive  commer- 
cial law,  II,  432. 

Children,  rearing  of,  in  Sparta,  i,  70 
(Plutarch) ;  laws  of  Solon,  i,  84 ; 
among  the  Germans,  i,  105  (Taci- 
tus);  killing  of,  I,  228  f.  (Aus- 
tralia) ;  betrothal  of,  among  the 
Eskimos,  i,  241 ;  Eskimo,  i,  246  f . ; 
belong  to  the  mother,  i,  285 
(Wyandots) ;  adulterous,  are  il- 
legitimate, I,  338  (Fantis) ;  named 
according  to  days  of  the  week,  i, 
340  f.  (Fantis) ;  kidnaping 
punished  by  death,  i,  393  (Bab.) ; 
disinheritance  of,  i,  422  (Bab.) ; 
of  slave,  I,  423  (Bab.) ;  dowry  of 
daughter  of  concubine,  i,  425  f. 
(Bab.) ;  born  after  divorce,  dis- 
posal of,  I,  455  (Gortyn) ;  third 
sale  of  son  emancipates,  i,  466 
(xii  Tab.) ;  fine  for  kilUng,  i,  504 
(Lex  Sal.) ;  son  of  surety  respon- 
sible, I,  526  f.  (Welsh) ;  adoption 
of  captive,  ii,  80,  130  note ;  father 
responsible  for  torts  of  son,  ii, 
296 ;  relation  of,  to  family,  ii,  336 
f . ;  betrothal  of,  rare  in  ambilian 
marriage,  iii,  126;  infanticide, 
III,  130  f. 

Chinese,  legal  system,  iii,  199,  204. 

Chrenecruda,  i,  510  (Lex  Sal.) ;  iii, 
601. 

Churinga,  i,  219,  224,  225,  231  note, 
233 ;  inherited,  i,  234  f . 

Cicero,  speech  for  Milo,  i,  623  f . ; 
religious  character  of  his  plan  of 
legislation,  ii,  104 ;  in,  164,  379 ; 
orations  of,  compared  with  Isaeos, 
III,  420. 

Cities  of  refuge.     See  Sanctuary. 

Citizenship,  laws  of  Solon,  i,  86 
(Plutarch) ;  right  to  bear  arms 
test  of,  among  the  Germans,  i,  102 
(Tacitus) ;  capitis  deminutio,  ii, 
353  (Sohm) ;  evolution  from 
ethnic  to  territorial  law  of,  in, 
644  f. 

Civilization,  phonetic  writing  as  dis- 
tinctive mark  of,  in,  51  (Morgan) ; 
characteristics  of,  in,  54  (Suther- 
land) ;  beginnings  of,  in,  454  f. 
(Bagehot).     See  Classification. 

Clan  organization,  i,  258  f.,  264 
(Seris) ;  as  a  state  of  nature,  n, 
28;  leviratical  marriage  under, 
n,  29  f . ;  based  on  kinship  in  fe- 
male line,  II,  74 ;    system  of  rela- 


tionship, II,  76 ;  each  clan  receives 
totemic  name,  n,  77;  exogamy 
in,  II,  81 ;  is  basis  of  all  modern 
civilized  States,  n,  88;  two  dis- 
tinct systems  of,  ii,  188 ;  char- 
acteristics of,  II,  189  f. ;  relation 
to  tribe,  n,  277. 

Classification,  stubbornness  of,  in 
ancient  law,  ii,  388 ;  of  social 
types,  III,  3  f .  (Steinmetz) ;  vari- 
ous systems,  in,  16  f . ;  natural 
and  artificial,  in,  17  f. ;  purpose 
of  sociological,  in,  20  f . ;  attempts 
at  sociological,  in,  22  f . ;  defini- 
tion of  artificial,  in,  24 ;  Coste,  in, 
24;  Fouillee,  in,  25;  Ward,  in, 
27  ;  Spencer,  in,  28  ;  Durkheim, 
III,  31 ;  Giddings,  in,  33 ;  Liszt, 
III,  36;  Hildebrand,  in,  37; 
Biicher,  in,  38;  Grosse,  in,  40; 
Hahn,  III,  41;  Le  Play,  in,  43; 
Demolins,  in,  45  ;  Vignes,  in,  46 ; 
Morgan,  in,  47  f . ;  Sutherland, 
III,  52  f . ;  Comte,  in,  58  f . ;  Vier- 
kandt,  in,  61  f . ;  Ratzel,  in,  66 ; 
plan  of  sociological,  in,  68  f. 
(Steinmetz) ;  nomenclature,  in, 
14;  method  of,  in  generalizing 
data  of  legal  evolution,  in,  77  f. 
(Mazzarella) ;  stratigraphy,  in, 
82 ;  coefficient  of  concomitance  of 
legal  norms,  in,  85  ;  general  socio- 
logical, impossible,  in,  85 ;  ethnic, 
III,  104. 

Climate,  effect  of,  on  law,  in,  203. 

Codes,  dates  of  ancient,  i,  387 ; 
Accadian  laws,  i,  385;  of  Ham- 
murabi, I,  387;    the  Pentateuch, 

I,  443;  laws  of  Gortyn,  i,  453; 
the  Twelve  Tables,  i,  465 ;  laws 
of  Manu,  i,  469;  Lex  Salica,  i, 
500 ;  iEthelbirht's  dooms,  i,  512  ; 
laws  of  Howel,  i,  519 ;  contradic- 
tory content  of,  explained,  n,  107  ; 
era  of,  n,  169  f.  (Maine) ;  as  end 
of  spontaneous  legal  development, 

II,  173;    of  Narada,  law  of  mar- 
'  riage  in,  n,  313  ;  in  barbarism  and 

civiUzation,  in,  53  f . ;  analogies 
in,  in,  169;  code  Napoleon  im- 
posed by  conquest,  in,  171 ;  of 
Lycurgus  and  of  Solon,  in,  175; 
in,  490 ;  evolution  from  oral  law 
to.  III,  587  f . ;  Swiss,  in,  599  f . ; 
German  civil,  in,  599;  of  com- 
mercial law.  III,  611 ;  effect  of 
war  upon,  in,  666. 
Code  Napoleon,  n,  609;  imposed 
by  conquest,  in,  171 ;  imitated 
by  Japanese,  in,  173;  influence 
of  droit  ecrit  upon,  in,  202;  on 
landlord  and  tenant,  in,  258 ;  in, 
260 ;  III,  582 ;  in,  590 ;  character 


INDEX 


683 


of,  III,  598  f. ;  formalism  in,  iii, 
605;  no  commercial  law  in,  iii, 
611;  territorial  principle  in,  iii, 
645;  rights  of  foreigners  in,  in, 
648 ;  as  written  reason,  in,  662 ; 
III,  r)(>9. 

Coetlicient  of  concomitance  of  legal 
norms,  in,  85  f.  (Mazzarella). 

Coemtio,  n,  290,  330,  493. 

Cogliolo,  criticism  of  view  of,  in 
legal  evolution,  in,  153  (n). 

Cognates.  See  Agnates  and  Kin- 
ship. 

Collinet,  Pol,  on  sponsio  and  primi- 
tive contract,  n,  512  f. 

Comitia  calata,  n,  565  f. 

Comitia  curiata,  n,  382,  565  f. 

Commenda,  ii,  416. 

Commendation,  i,  327  (Fantis) ; 
symbolism  in,  ii,  653. 

Commensalism,  in,  269. 

Commerce,  origin  of  institutions  of, 
n,  407  f. ;  rise  of  sea,  n,  410  f. ; 
evolution  of,  n,  416  f. ;  primitive 
law  of,  II,  420  f. 

Commercial  honor,  n,  414  f. 

Commercial  Law,  primitive,  n,  420 
f.  (Koehne) ;  evolution  from  civil 
to.  III,  610  f.  (Grasserie). 

Commercial  paper,  origin  of,  n,  412  f . 

Common  Law,  characteristics  of 
English,  in,  369  f.  (Bryce) ;  race 
factor  in,  in,  371 ;  geographical 
factor  in,  in,  376. 

Communal  marriage,  i,  245  (Eski- 
mos).    See  Group  Marriage. 

Communism,  forms  of,  n,  377  f . ; 
primitive,  n,  450  f. ;   in,  320. 

Comparative  Law,  likened  to  com- 
parative philology,  II,  4  f.  (Koh- 
ler) ;  chronological  connection  of 
legal  customs  not  applicable,  n, 
23  f.,  34  (Post) ;  science  of  uni- 
versal, II,  61  f.  (Del  Vecchio) ; 
cannot  be  complete,  n,  61 ;  ab- 
scence  of,  in  curricula  of  study,  ii, 
62 ;  study  of,  based  on  the  unity 
of  human  nature,  n,  65  f. ;  scope 
of.  III,  79  (Mazzarella). 

Complementary  reconstruction,  in, 
97. 

Composition,  i,  140,  141,  145,  153, 
155,  162,  ItH,  165,  207  f.  (Ice- 
land) ;  I,  509  (Lex  Sal.) ;  bote,  i, 
513  (iEthel.);  galanas,  i,  534, 
534  f.  (Welsh) ;  table  of  penalties 
for  corporal  injuries,  i,  547  f. 
(Welsh);  in  the  clan,  ii,  82; 
second  stage  of  criminal  law,  n, 
124 ;  II,  134  f. ;  system  of,  com- 
pared with  modern  law,  n,  643; 
relation  of  ambilian  marriage  to, 
in,  121. 


Compurgation,  i,  537,  539  (Welsh) ; 
substitute  for  blood  feud,  ii,  148 
f. ;  origin  of,  n,  578 ;  oath  of,  n, 
629 ;   natural  basis  of,  n,  696. 

Comte,  classification  of  social 
changes,  in,  58  f. ;  in,  267 ;  in, 
460;  on  death  as  a  progressive 
agencv,  in,  558. 

Concubinage,  i,  16,  36,  42  (Homer) ; 

I,  306,  320  (Kaffirs) ;  i,  337  (Fan- 
tis) ;  I,  410,  416  f.,  423  (Bab.) ; 
children  of,  inherit,  i,  422  (Bab.) ; 
dowry  of  daughter  of,  i,  425  f. 
(Bab.) ;  i,  598  (Greece) ;  in  primi- 
tive society,  n,  328  note  (Hob- 
house)  ;  II,  244 ;  in  Babylon,  ii, 
303 ;  in  Egypt,  ii,  310 ;  in  China, 

II,  318 ;  in  Greece,  ii,  327 ;  female 
slave  in,  n,  348. 

Condictio,  in,  339. 

Confarreatio,  ii,  288,  290,  330 ;  in, 
189. 

Consideration,  doctrine  of,  in 
Roman-Dutch  law,  in,  207;  in, 
629;   "cause",  in,  641. 

Contempt  of  court,  i,  148,  198  (Ice- 
land);  I,  305  (Kaffirs);  i,  509 
(Lex  Sal.). 

Contracts,  of  service,  i,  38,  51 
(Homer) ;  of  work  and  labor,  i, 
438  f.  (Bab.) ;  i,  466  (xii  Tab.) ; 
enumeration  of  void,  i,  482 
(Manu) ;  of  work  and  labor,  law 
of,  I,  486  (Manu) ;  law  of,  i,  527 
f.  (Welsh) ;  curse  of  the  gods  for 
violation  of,  i,  585 ;   of  Hepzephi, 

I,  667  f.  (Egypt);  plurality  of 
personality  in,  i,  668,  673  (Egypt) ; 
of  hiring  of  servant,  i,  681  (Bab.) ; 
of  partnership,  i,  682  (Bab.);  of 
loan,  I,  682,  683,  685-6  (Bab.); 
of  adoption,  i,  683  (Bab.) ;  con- 
tract tablets,  I,  685  f.,  694  f . ; 
sacramental  character  of  ancient, 

II,  108  f. ;  of  early  law  not  by  in- 
dividuals, II,  385;  evolution  of, 
II,  481  f. ;  origin  of  formal,  ii, 
495 ;  early  history  of,  n,  498  f . ; 
Roman  forms  of,  n,  505;  forms 
of  Roman  consensual,  n,  508  f . ; 
sponsio  and  primitive,  n,  512  f. ; 
of  arbitration,  n,  625;  oath  in, 
632  f . ;  formal  in  Germanic  law, 
II,  651  f . ;  relation  of  ambilian 
marriage  to,  in,  115;  of  loan,  in 
India,  in,  133  f.,  135;  economic 
basis  of.  III,  257  f.  (Loria) ;  con- 
tracts of  Roman  law,  in,  603; 
solemn,  in  Germanic  law,  in,  604 ; 
the  aleatory,  in,  635;  evolution 
of  law  from  regulation  to  liberty 
of,  in,  636  f. ;  evolution  from 
unilateral  to  bilateral,  in,  640  f. 


684 


INDEX 


Convention,  as  nucleus  of  the  eon- 
tract,  II,  499. 

Convergence,  none  in  legal  develop- 
ment, III,  353. 

Cook,  Stanley  A.,  on  Ancient  Semitic 
Procedure,  ii,  654  f. 

Corporal  injuries,  fines  and  punish- 
ments, I,  427  f.  (Bab.);  i,  491 
(Manu);  i,  503  (Lex  Sal.);  i, 
515  f.  (Eng.) ;  i,  547  f.  (Welsh) ; 
composition  for,  in  the  clan,  ii, 
82.        ^ 

Corporation,  ecclesiastical,  in 
savagery,  ii,  79,  82;  the  Roman 
family  as  a,  ii,  558. 

Coste,  classification  of  societies,  iii, 
24  f. 

Coulanges,  Fustel  de,  ii,  39,  46 ;  on 
Omnipotence  of  Ancient  State,  ii, 
92  f . ;  on  Kingly  Authority,  ii, 
99  f . ;  Religious  Origin  of  Ancient 
Law,  II,  104  f . ;  Religious  Basis  of 
Family,  ii,  283  f . ;  Marriage  in 
Greece  and  Rome,  ii,  285  f . ;  Re- 
ligious Basis  of  Adoption,  ii,  344 
f . ;    Religious  Basis  of  Property, 

II,  361  f. ;  Religious  Basis  of  In- 
heritance, II,  5421 ;  on  Ancient 
Magistracy,  ii,  580  f . ;   criticized, 

III,  426 ;   III,  493. 

Council  of  Elders,  i,  4,  5,  10,  11 
(Homer) ;  i,  61  (Plutarch) ;  i, 
266  (Seris) ;  i,  293  f .  (Kaffirs) ; 
usurped  the  function  of  the  king, 
II,  166  (Maine). 

Courts,  of  the  Druids,  i,  91  (Csesar) ; 
priestly,  among  the  Germans,  i, 
98  (Tacitus) ;  Iceland,  i,  124,  130, 
138,  144  f .,  the  fifth  court,  i,  148  f ., 
183,  185,  jurisdiction,  i,  187  f., 
197  f . ;  I,  469  f .  (Manu) ;  Welsh 
laws  of,  I,  521  f. ;  council  of 
Areopagus,  i,  591,  601 ;  of  Deliaea, 
I,  593 ;  the  Ephetae,  i,  594 ;  gods 
as  judges  in  court  of  Areopagus,  i, 
601 ;  of  Palladium,  i,  602  f. ;  of 
Delphinium,  i,  603;  the  Pry- 
taneum,  i,  604;  Phreatto,  i,  604; 
priestly  character  of  ancient,  ii, 
105  f.,  580  f. ;  early  judge  essen- 
tially a  peacemaker,  ii,  145 ;  kinds 
of  ancient,  ii,  579;  among  the 
early  Semites,  ii,  655  f . ;  held  at 
the  city  gate,  ii,  660  f . ;  judge  at 
Rome  was  private  person,  ii,  670 ; 
clerks  necessary  to,  but  not  law- 
yers, II,  704;  development,  iii, 
413.  See  Arbitration;  Pro- 
cedure ;  Witnesses. 

Credit,  origin  of,  ii,  412  f . ;  absence 
of  in  primitive  law,  ii,  457  ;  debts 
an  anomaly  in  early  law,  ii,  503 ; 
use  of  in  boy  society,  iii,  347  f. 


Crimes,  punishment  of,  among  the 
Germans,  i,  101  (Tacitus) ;  enu- 
meration of,  I,  287  (Wyandots) ; 
failure  to  observe  forms  in  prose- 
cution for,  is  proof  of  innocence,  i, 
288;  I,  300  f.,  313  f.  (Kaffirs); 
cannot  be  compounded,  i,  314; 
distinction  between  wilful  and 
accidental  homicide,  i,  315 ;  ex- 
piation blots  out,  I,  493  (Manu) ; 
economic  basis  of,  iii,  261  f.  See 
Composition;   Punishment. 

Criminal  anthropology,  iii,  263. 

Criminal  Law,  evolution  of,  ii,  122 
f. ;  early  stages,  ii,  122  f . ;  de- 
velopment of,  II,  128  f . ;  origin  of 
punishment,  ii,  151  f. ;  relation 
of  ambiUan  marriage  to,  iii,  119; 
economic  basis  of,  iii,  261  f. 
(Loria) ;  criminal  classes,  iii,  263 ; 
evolution  from,  to  civil  law,  iii, 
609. 

Criteria  of  legal  evolution,  iii,  3  f . 

Culture,  characterisitcs  of,  iii,  55 
(Sutherland). 

Curia,  Roman,  iii,  32. 

Curse,  the,  as  a  punishment,  laws 
of  Solon,  I,  86  (Plutarch);  for 
fraud  of  patron,  i,  467  (xii  Tab.) ; 
for  violation  of  contract,  i,  585; 
for  removal  of  boundary  stones, 
II,  373 ;  as  a  sanction,  ii,  575  f . ; 
relation  to  oath,  ii,  621 ;  in  Se- 
mitic procedure,  ii,  663. 

Custom,  contract  breaks,  i,  528 
(Welsh) ;  social,  is  organic,  ii,  35 ; 
law  of,  subsequent  to  Themistes, 

II,  164    (Maine) ;     coutumes    of 
France,  iii,  171 ;  evolution  of,  iii, 

.576  (Grasserie) ;   iii,  588  f. ;  neo-, 
or  judicial  stage  of,   iii,  591  f. ; 

III,  595  f . 

Cuvier,  classification  of,  iii,  18. 
Cyclops,  the,  i,  39,  40  (Homer) ;   ii, 
196 ;   III,  457. 


Dareste,  II,  37,  43,  49,  52,  59. 
Dargun,  ii,  204  f . ;    classification  of 

societies,  iii,  41. 
Darwin,  ii,  38  f. ;  ii,  216  f. ;  in,  170 ; 

III,  204;    III,  283;    iii,  317;    iii, 

352,  354;    iii,  375;    in,  434  f . ; 

principle  of  antithesis,  in,  492. 
Daughter's  portion,  i,  127  (Iceland). 
Daysman,  i,  23   (Homer) ;    i,   145, 

164  (Iceland). 
Death  fine,  ii,  124. 
Debtor  and  Creditor,  law  of,  i,  473 

f.  (Manu).     See  Debts. 
Debts,  release  of,  by  Solon,   i,  80; 

imprisonment  for,  i,  382  (Fantis)  ; 


INDEX 


685 


husband  and  wife  jointly  liable,  i, 
418  (Bab.) ;  debtor  imprisoned 
and  cut  to  pieces,  i,  466  (xii 
Tab.) ;  pajnnent  of,  by  labor,  i, 
483  (Manu) ;  servitude  for  in 
Rome,  II,  371,  520:  in  Africa,  in, 
257  ;  debtor  pledged  his  person  in 
Rome,  III,  621.  See  Nexum  and 
Slavery. 

Deed,  of  house,  i,  680,  681  (Bab. 
Doc);  of  partition,  I,  684  (Bab. 
Doc.) ;   Assyrian,  i,  691  f. 

Defamation,  law  of,  i,  490  (Manu). 

De  Greef,  in,  192 ;  concept  of  legal 
evolution  as  helix,  iii,  536;  in, 
561 ;    III,  671. 

De  la  Grasserie,  criticized,  in,  532, 
535  f. ;  on  the  Evolution  of  Civil 
Law,  III,  571  f. 

Delbruck,  n,  204  f. 

Delphinium,  court  of,  i,  603. 

Del  Vecchio,  on  Science  of  Universal 
Comparative  Law,  n,  61  f . ;  view 
of,  examined,  in,  154. 

Demesne  land,  i,  24,  25  (Homer) ; 
in  Babylon,  i,  397  f . 

Demolins,  classification  of  societies, 
III,  45. 

Demoor,  Jean,  on  Degenerative 
Evolution,  III,  542  f. 

Demosthenes,  Oration  against  Aris- 
tocrates,  i,  587  f. 

Deodands,  jurisdiction  of  the  Pry- 
taneum,  i,  694;    n,  143. 

Depositaries,  regulation  of,  i,  409, 
410,  411  (Bab.). 

Descent,  of  dowry,  among  the  Ger- 
mans, I,  105  (Tacitus) ;  in  female 
line,  I,  213,  218  (AustraUa),  i,  326, 
372  (Fantis) ;  in  paternal  line,  i, 
218  (Australia).     5ee  Succession. 

Deschamps,  in,  555. 

Desertion,  effect  of,  on  marital  rela- 
tion, I,  414  (Bab.). 

Dessah,  in,  546. 

Devancel,  in,  280. 

Dhama,  n,  208. 

Dharma,  n,  208. 

Dharmasutric  Period,  jural  geneal- 
ogy of  loan  in,  in,  133  f.,  138  f. 
(Mazzarella). 

Dharna,  as  a  mode  of  enforcing 
payment,  i,  381;  n,  606,  700; 
in,  495. 

Dialogus  de  Scaccario,  n,  594. 

Dies  Fastus,  in,  189,  605. 

Diffareatio,  n,  290,  330;  in,  189. 
See  Divorce. 

Digby,  on  English  land  law,  in,  421. 

Dike,  n,  164. 

Diomosia,  n,  624. 

Discretion,  want  of,  in  early  law,  n, 
642  f . ;  in  modern  law,  n,  647  f. 


Disinheritance,  i,  422  (Bab.) ;  desire 
for,  as  explanation  of  the  will,  11, 
564  f. 

Distress,  i,  409,  435  (Bab.) ;  i,  .507  f. 
(Lex  Sal.) ;  against  trespassing 
animals,  i,  551  (Welsh) ;  origin  of, 
II,  591  f . ;  as  a  survival,  n,  597 ; 
in  Brehon  law,  n,  599  f . ;  in 
Roman  procedure,  n,  676 ;  n,  700. 

Dius  fidius,  II,  481  f. 

Divination,  in  administration  of 
justice,  II,  81 ;    n,  576,  619,  639. 

Division  of  labor,  circulation  of 
goods  without,  II,  445  f. 

Divorce,  allowed  only  to  husband, 
I,  61  (Plutarch) ;  i,  128  f.  (Ice- 
land) ;    Eskimo,  i,  243  f. ;    Kaffir, 

I,  321 ;  Fanti,  i,  339 ;  i,  386  (Ac- 
eadia) ;  i,  414  f.  (Bab.) ;  i,  454  f., 
463  (Gortyn) ;  Welsh,  i,  523  f . ; 
in  primitive  society,  11,  243 ;  n, 
250  f . ;  early  marriage  indis- 
soluble, II,  290;  in  Babylon,  n, 
302 ;   in  Egypt,  n,  305 ;   in  India, 

II,  315;  in  China,  n,  319;  He- 
brew, II,  322  f . ;  Arabian,  n,  324 ; 
in  Rome,  n,  330,  333;  to  effect 
inheritance,  n,  546 ;  no  connec- 
tion with  ambiUan  marriage  sys- 
tem, III,  109;  diffareatio,  n,  290, 
330 ;  III,  189. 

Domesticism,  in,  269. 

Dominium,  origin  of  term,  n,  501. 

Dooms,  I,  40,  41  (Homer) ;  i,  123, 
165;   of  ^thelbirht,  i,  512  f. 

Dowry,  i,  12  (Homer) ;  law  of 
Solon,  I,  83;  in  Gaul,  i,  92 
(Caesar) ;  among  the  Germans,  i, 
104  (Tacitus) ;   action  to  recover, 

I,  130,  135  f.  (Iceland) ;  i,  307, 
309  f.,  311  f.,  320  (Kaffirs);  i, 
414  f.,  420  f.  (Bab.);  i,  456;  n, 
302  (Gortyn) ;   n,  305  f.  (Egypt) ; 

II,  313  (India) ;  n,  325  (Moham- 
medan) ;    II,  333  (Rome). 

Draco,  laws  of  homicide,  i,  591  f . ; 
little  of  system  in  code  of,  n,  170 ; 
in,  366. 

Draft,  formalism  of  the,  n,  650. 

Druids,  as  judges,  i,  90  (Caesar). 

Dugmore,  on  Kafir  Laws  and  Cus- 
toms, I,  292  f . ;    II,  608 ;   in,  492. 

Durand  (de  Gros),  on  classification, 

III,  16. 

Durkheim,  n,  224,  444;  classifica- 
tion of  societies,  in,  5,  31  f. 

Dyaks,  villages,  described,  n,  400. 

Dynamic  unity  of  law,  in,  181 
(Picard). 

E 

Earnest  Money,  to  bind  sale  of 
land,  I,  367  (Fantis). 


INDEX 


Economic  factor,  in  ambilian  mar- 
riage, III,  125 ;  as  a  cause  of  law, 
III,  184,  190,  194  (Nardi-Greco) ; 
III,  234  f.  (Loria). 

Egypt,  laws,  i,  446  f.  (Harmhab) ; 
trials,  I,  557  f . ;  documents,  i, 
665  f. 

Einwohnergemeinde,  iii,  549. 

Elderman,  head  of  the  clan  group, 
II,  76 ;   and  the  Shaman,  ii,  79. 

EUero,  in,  265. 

Emancipation,  correlative  of  adop- 
tion, II,  346 ;  by  triple  sale,  ii, 
523 ;  effect  of,  on  inheritance,  ii, 
548. 

Emptor  famihae,  ii,  382,  568  f. 

Emphyteusis,  in,  258. 

Enatic  kinship,  ii,  189. 

Endogamy,  tribal,  i,  274  (Seris) ;  i, 
284  (Wyandots) ;  many  varieties, 
II,  245  f. ;  explained,  ii,  282 
(Powell). 

Engels,  II,  450. 

English  Law,  private  vengeance  in, 

II,  123 ;    reaction  of  Roman  law 
on,  III,  200. 

Environment,  as  a  factor  of  legal 
evolution,  in,  170  (Picard) ;  Mon- 
tesquieu on.  III,  170;  Hegel  on, 
in,  170.  See  Geophysical  Fac- 
tors. 

Equity,  as  an  agency  of  legal 
growth,  II,  175  f . 

Eskimo,  the  Point  Barrow,  i,  237  f. 

Esmarch,  in,  359. 

Espinas,  in,  268  f. 

Estate,  division  of,  at  death,  i,  43 
(Homer) ;  among  brothers,  i,  64 
(Plutarch).     See  Succession. 

Ethnogamy,  i,  275  (Seris). 

Ethnological  jurisprudence,  mean- 
ing, scope,  and  method,  n,  10  f . ; 
fundamentally  inductive,  n,  10; 
method  of,  distinguished  from 
philology,  II,  24;  illustrations  of 
method  of,  n,  25  f . ;  has  no 
chronology,  n,  23  f.,  34;  data  of , 
not  subject  to  SBsthetic  or  ethical 
criticism,  n,  35  f .  (Post) ;  strati- 
graphic  analysis  in,  in,  79  f. 
(Mazzarella) . 

Ethnologic  types,  feudal  and  gentilic 

III,  79  (Mazzarella). 
Etruscans,  received  laws  from  god 

Tages,  II,  106. 
Evidence,  rules  of,  i,  470  f .  (Manu) ; 
suit  to  recover  money,  i,  473  f. 
(Manu) ;  detectives  used  to  prove 
deposit,  I,  483  (Manu) ;  in  bound- 
ary disputes,  I,  488  f .  (Manu) ; 
Germanic  hostility  to  inquisitorial 
and  documentary,  n,  644 ; 
methods  of  proof,  n,  691 ;  written. 


in  Egypt  and  Babylon,  ii,  667. 
See  Procedure. 
Evolution  of  law,  meaning,  scope, 
and  method,  n,  3  f . ;  a  reasonable 
process,  ii,  6  f . ;  does  not  proceed 
by  mathematical  rule,  n,  9  (Koh- 
ler) ;  fallacies  of  theory  of  uni- 
form, II,  37  f . ;  compared  to 
language,  n,  52  (Tarde) ;  no 
general  principle  of,  yet  dis- 
covered, II,  58 ;  each  phase  sums 
up  earlier  forms,  n,  64 ;  criticism 
of  evolutionist  theories,  in,  353  f., 
434  f . ;  struggle  and  adaptation 
in.  III,  476 ;  planetary  theory  of, 
III,  531  f. ;  formulas  of,  in,  535  f. ; 
degeneration  in,  in,  543  f . ;  civil 
law,  III,  571  f . ;  the  spiral  curve 
of  evolution,  in,  572  f . ;  direction 
of.  III,  575  f . ;  oral  to  written 
laws.  III,  587  f . ;  stage  of  crystal- 
lization, III,  590  f . ;  from  law  of 
nature  to  positive  law,  in,  592  f. ; 
from  local  to  general  law,  in,  595 
f . ;  from  simple  to  complex  law,  in, 
598  f . ;  from  material  to  imma- 
terial law.  III,  600  f . ;  from  formal 
to  formless  law,  in,  602  f . ;  from 
theocratic  to  secular  law,  in,  606  ; 
from  criminal  to  civil  law,  in, 
609;  from  civil  to  cornmercial 
law,  III,  610  f . ;  from  political  to 
private  law,  in,  612  f. ;  from  col- 
lective to  individual  law,  in, 
613  f . ;  from  esoteric  to  popular 
law.  III,  617  f . ;  from  the  outward 
act  to  the  mental  act,  in,  619  f. ; 
from  rights  in  rem  to  rights  in  per- 
sonam, III,  620  f . ;  from  law  of 
nominate  to  innominate  relations, 
III,  625  f . ;  from  concrete  to  ab- 
stract rights,  III,  629  f . ;  from 
immediate  to  deferred  rights,  in, 
632 ;  from  gratuitous  to  aleatory 
transactions,  in,  633  f. ;  from 
regulation  to  liberty  of  contract, 
III,  636  f. ;  from  unilateral  to  bi- 
lateral agreements,  in,  640  f . ; 
from  family  to  individual  rights, 
III,  642  f . ;  from  ethnic  to  terri- 
torial law.  III,  644  f . ;  from  exclu- 
sion to  admission  of  foreigners, 
III,  647  f . ;  from  violent  to  peace- 
able methods,  in,  649  f . ;  from 
oral  to  written  to  oral  forms,  in, 
654  f . ;  from  immovable  to  mov- 
able property,  in,  658  f . ;  from 
reality  to  fiction,  in,  660  f . ;  in- 
tensity of  movement,  in,  662  f . ; 
arrestment  of,  in,  662 ;  oscillation 
in,  III,  663 ;  resumption  of  move- 
ment in.  III,  663;  acceleration 
and  retardation  in,  in,  664;    the 


INDEX 


687 


perpetual,  in,  667  f . ;  general  as- 
pects of,  III,  667  ;  external  and  in- 
ternal, in,  668  ;  schematic  repre- 
sentation of,  in,  670  f . ;  theory 
of  jural  progress,  in,  670  f . ;  ab- 
stract and  concrete  in,  in,  673  f . ; 
epochs  in,  in,  673  f. ;  ordinary 
path  of.  III,  675  f. 

Exchange  of  gifts,  i,  7,  30,  52 
(Homer) ;  in  marriage,  among  the 
Germans,  i,  104  (Tacitus) ;  guest 
presents,  i,  106  (Tacitus) ;  mar- 
riage a  form  of,  n,  302  (Bab.) ;  to 
seal  the  bargain  of  biood-frater- 
nity,  II ,  343  ;  to  cement  a  protec- 
tive relationship,  n,  424;  obliga- 
tory character  of,  ii,  440  f- 

Exchange  of  goods,  not  primitive, 
II,  407. 

Exchange  of  wives,  i,  244  (Eskimo). 

Existimationis  minutio,  n,  356  f. 

Exogamy,  i,  213  (Australian) ;  clan, 
I,  274,  278;  i,  284  (Wyandot); 
in  clan  organization,  n,  81,  190; 
violation  of  rules  of,  a  public 
offense,  n,  131 ;  gentile  rule  of, 
n,  213  f. ;  as  a  survival  of  group 
marriage,  n,  215  f . ;  origin  of,  ii, 
216  f. ;  many  varieties  of,  n,  245 
f . ;  explained,  n,  282  (Powell) ; 
n,  396 ;  constant  in  ambilian  mar- 
riage system,  in,  109,  125. 

Expiation,  wipes  out  crime,  i,  493 
(Manu) ;  ancient  Aryan,  ii,  482, 
486. 


Factor,  origin  of  the,  ii,  408  f. 
(Goldschmidt). 

Factors  of  legal  evolution,  in,  163  f. 
(Picard) ;  kinds,  in,  164 ;  race, 
III,  164  f. ;  causes  of  variation,  in, 
182  f.  (Nardi-Greco) ;  political 
facts,  in,  183;  economic  facts, 
in,  184,  190;  moral  facts,  in, 
185 ;  causes  of  law  in  general,  in, 
193;  survey  of  causes,  in,  196; 
geography,  in,  198;  chmate,  in, 
203 ;  conq^uest  and  colonization, 
in,  209;  inertia,  in,  210;  geo- 
graphic environment,  in,  215; 
economic,  in,  234  f.  (Loria) ;  bio- 
logic, in,  267  f. ;  racial,  in,  352  f. ; 
religious,  in,  378  f. ;  psychologic, 
in,  393  f. ;  poHtical,  in,  417  f . ; 
the  constitutional  factor,  in,  417 
f. ;  social,  in,  440  f. ;  physical 
force,  in,  440  f. ;  struggle,  in,  440 
f. ;  compromise,  in,  447  f. ;  con- 
flict, III.  451  f. ;  struggle  and 
adaptation,  in,  473  f. ;  arbitra- 
ment and  guaranty,  in,  485  f. 


Faith,  oath  of,  the  most  solemn,  i, 
77.     See  Fides. 

Falcidian  Portion,  in,  254  f. 

Family,  evolution  of,  n,  259;  re- 
ligious basis  of,  n,  283  f. ;  five 
principal  forms,  in,  46  (Morgan) ; 
types.  III,  90  f.  (Mazzarella) ;  re- 
lation to  economic  facts,  in,  184 ; 
origin  of,  in,  194 ;  maternal,  in, 
240 ;  economic  foundations  of,  in, 
246  f .  (Loria) ;  as  basis  of  society, 
in,  271  f . ;  types  of,  among  ani- 
mals, III,  276 ;  Roman  and  Greek 
compared,  in,  364  f. ;  evolution 
from,  to  individual  rights,  in, 
642  f.     See  Marriage. 

Fanti  Customary  Law,  i,  326  f. 

Faris,  Ellsworth,  on  the  Origin  of 
Punishment,  n,  151  f. 

Fas,  II,  481  f. 

Fasting,  as  a  method  of  enforcing 
payment,  i,  381;  ii,  605  f.,  700; 
III,  136 ;    III,  495. 

Father  Right,  in  the  clan  system,  ii, 
28 ;  compared  with  mother  right, 
II,  261  f. ;    n,  301. 

Feciales,  office  and  function,  i,  77. 

Feigned  combat,  i,  466  (xii  Tab.) ; 
I,  622  (Gaius) ;    n,  109 ;   in,  487. 

Felag,  II,  416. 

Feldgemeinschaft,  in,  549. 

Felix,  Ludwig,  on  the  Influence  of 
Religion  upon  Law,  in,  378  f. 

Festuca,  in,  601  f.     See  Formalism. 

Feudal,  and  gentile  societies,  the 
only  main  types,  in,  83  f.  (Maz- 
zarella). 

FeudaUsm,  n,  379 ;  English  law  based 
on,  in,  424;  property  in,  in,  547. 

Fictions,  as  agencies  of  the  law's 
growth,  II,  175  f. 

Fides,  as  basis  of  contract  law,  ii, 
481  f. ;  elements  of  concept,  n, 
483  f . ;  relations  based  on,  n,  487 
f. ;   acts  of,  II,  489  f. 

Fidei  commissa,  in,  253,  631. 

Fiducia,  n,  524 ;    in,  623,  629  f . 

Fijis,  villages  of,  described,  n,  399  f. 

Filmer,  n,  202. 

Findings,  false,  jurisdiction,  i,  148 
(Iceland). 

Fison  and  Howitt,  in,  556. 

Flamen,  n,  580. 

Forms  of  law,  n,  162  f.  (Maine); 
criticism  of  Maine's  generaliza- 
tion, III,  154  f. 

Foedus,  II,  492. 

Folkmot,  III,  373. 

Foreigners,  relation  of,  to  commerce, 
in,  407  f.,  415,  n,  420;  market 
protection  of,  n,  428  f. ;  evolution 
from  exclusion  to  admission  of, 
in,  647  f.     See  Aliens. 


688 


INDEX 


Folk  custom,  in,  393  f.  (Page). 
Folkways,  iii,  393  f.  (Page). 
Foreign    intrusion,    as   a   factor   of 

legal  evolution,  iii,  171  (Picard). 
Forfeit,   element  of,   in  pledge,   ii, 

457  f. 
Forfeiture    of    goods,    for    corporal 

injuries,  ii,  142  f. 
Formalism,  in  early  law,  ii,  386,  388  ; 

ancient,    ii,    638    (Heusler) ;     in 

procedure,  ii,  703  ;  evolution  from 

formal  to  formless  law,  iii,  602  f. 
Formulary  procedure,  ii,  678  f. 
Foster  paternity,  ii,  339. 
Fouillee,   classification  of  societies, 

III,  25. 
Fratres  arvales,  ii,  105. 
Fraud,     against    monopoly    rights, 

against  revenues,  by  statement,  i, 

498  (Manu). 
Frazer,  ii,  220  f.,  228  f.,  in,  603. 
Fungibles,  relation  of,  to  credit,  ii, 

413. 

G 

Gaius,  the  sacramental  action,  i, 
620  ;  II,  109  ;  on  patria  potestas, 
II,  212 ;   II,  291 ;   ii,  596. 

Galton,  III,  351,  456. 

Gans,  III,  255. 

Genealogy,  jural,  defined,  in,  93 
(Mazzarella) ;  laws  of  jural,  in, 
98;  reconstruction  of  jural,  in, 
97 ;   of  the  Indian  loan,  in,  143. 

Generalization,  scientific  method, 
in,  77  f.  (Mazzarella) ;  Maine's, 
on  organs  of  law  declaration  criti- 
cized, III,  154  f. 

Gens,  definition  of,  i,  279 ;  primitive, 
the  germinal  element  of  civil  so- 
ciety, n,  35 ;  based  on  kinship  in 
male  line,  n,  74 ;  an  aggregation 
of  houses,  n,  198,  211 ;  Roman, 
compared  to  village  community, 
II,  382. 

Gentilic  and  feudal  societies,  the 
only  main  types,  in,  83  f.  (Maz- 
zarella). 

Geographic  environment,  influence 
of,  in,  215  f. 

Geophysical  factors,  in,  198  f . 

Germanic  Customs,  i,  93  (Caesar) ; 
I,  95  (Tacitus) ;  description  of 
tribes  and  rites,  i,  109  (Tacitus), 
^ee  Custom. 

Germanic  Law,  primitive  character 
of,  II,  4. 

Gewere,  n,  468,  652. 

Giddings,  classification  of  societies, 
ni,  33  f. 

Gifts,  exchange  of,  i,  7,  30,  52 
(Homer) ;  of  wooing,  i,  12,  21, 
22,  30,  35  (Homer) ;   distribution 


of,  among  chieftains,  i,  14 
(Homer) ;  to  chieftains,  i,  97,  102, 
103  (Tacitus) ;  compulsory,  i,  227, 
233,  236  (Australia) ;  of  betrothal, 
I,  284  (Wyandots) ;  of  and  to 
chieftains,  i,  295,  296  (Kaffirs); 
of  friendship,  i,  296  (Kaffirs); 
classification,  i,  361  (Pantis) ; 
avoidability  of,  as  against  credi- 
tors, I,  461  (Gortyn) ;  obligatory 
character  of,  n,  440  f. 

Giraud-Teulon,  in,  556, 

Glotz,  Gustave,  on  the  Ordeal  and 
Oath,  II,  609  f. 

Gnaeus  Flavins,  in,  189. 

Gobineau,  on  race  hierarchy,  in, 
166 ;   in,  353. 

God,  no  belief  in,  among  the  Aus- 
tralians, I,  233. 

Goethe,  concept  of  legal  evolution 
as  a  helix,  in,  536 ;   in,  574,  671. 

Goldschmidt,  Levin,  on  Origin  of 
Commercial  Institutions,  n,  407  f . 

Gomme,  G.  L.,  on  the  Village  Com- 
munity, II,  392  f. 

Gortyn,  laws  of,  i,  453  f . ;  n.  622, 
625  f.,  631. 

Gossipry,  disqualification  for,  i,  192 
(Iceland) ;  in  the  Catholic  Church, 
I,  236. 

Grazing,  regulation  of,  i,  403  f. 
(Bab.). 

Gragas,  in,  420. 

Greek  Law,  influence  of  on  Roman 
law.  III,  209. 

Grierson,  n,  440,  443. 

Grosse,  classification  of  societies,  in, 
10,  40. 

Grote,  II,  166. 

Group  marriage,  i,  215  f.  (Aus- 
tralia) ;  I,  245  (Eskimos) ;  n, 
239  f . ;  earliest  form,  i,  276 ;  ii, 
338.     See  Marriage. 

Group  relationship,  i,  214  f.  (Aus- 
tralia) ;   II,  181  f.  (Powell). 

Grundschuld,  in,  627. 

Guest  friendship,  i,  7  (Homer) ;  re- 
lation of,  to  commerce,  n,  415. 

Guest  present,  i,  30,  39,  46,  57 
(Homer) ;  among  the  Germans, 
I,  106  (Tacitus);    n,  496. 

Guilds,  institution  of,  by  Numa,  i,  78. 

Guyau,  in,  268. 

H 

Haagespraak,  III,  324. 

Haddon,  n,  227  f. 

Haeckel,  classification  of,  in,  18. 

Hahn,  classification  of  societies,  in, 
41  f. 

Hammurabi,  code  of,  i,  387  f . ; 
analysis  of  code  of,  i,  387  f . ;  ad- 
vance of  procedure  in,  n,  654  f. 


INDEX 


689 


Hanbalites,  ii,  50. 

Hanifites,  ii,  50. 

Harmhab,  edict  of,  i,  446  f. 

Hartmann,  in,  279  f. 

Haxthausen,  ii,  383. 

Hebrews,  forms  and  organs  of  law 
among,  in,  155. 

Hegel,  on  geographic  environment, 
III,  170. 

Heger,  Paul,  in,  560. 

Heirs,  liability  of,  i,  482  (Manu) ; 
the  universal  successor,  n,  554  f. 
(Maine).     See  Succession. 

Henotheism,  in,  647. 

Herder,  in,  232. 

Hermodorus,  in,  364. 

Herodotus,  in,  379. 

Hestia- Vesta  Cult,  ii,  209. 

Heteronyms,  in,  94. 

Heusler,  Andreas,  on  Ancient  For- 
malism, II,  638  f. 

Hildebrand,  economic  classification, 
in,  9  (n.),  37  f. ;    in,  192. 

Hindu  Law,  religious  element  in,  ii, 
110  f.  (Maine);  system  of,  in, 
199.     See  Manu. 

Historical  materialism,  in,  184,  185. 
See  Economic  Factor. 

Historical  School,  n,  66  f. 

Hobbes,  in,  2.35 ;  criticized,  in, 
491  f. 

Hobhouse,  L.  T.,  on  the  Develop- 
ment of  Justice,  II,  128  f . ;  n,  157  ; 
Women  in  Primitive  Society,  n, 
237  f . ;  Women  and  Marriage 
under  Civilization,  n,  301  f. ;  De- 
velopment of  the  Idea  of  Property, 
II,  372. 

Homer,  Iliad,  i,  3  f . ;    Odyssey,  i, 

27  f. ;   III,  379. 
Homestead^  in,  639. 
Homo  Alpinus,  in,  353. 

Homonyms,  in,  94. 
Hospitality,     i,     27,     28,     52,     57 
(Homer) ;    among  the  Germans, 

I,  94  (Cresar),  i,  106  (Tacitus); 
anaong  the  Eskimos,  i,  239;  to 
neighbors,  a  duty,  i,  497  {Manu) ; 

II ,  373  f. ;  in  the  evolution  of 
brokerage,  ii,  425  f. 

Hostage,  giving  of,  foundation  of 
suretyship,  n,  478. 

Houzeau,  in,  279,  558,  568. 

Howard,  George  E.,  on  the  Pa- 
triarchal Theory,  n,  196  f. 

Howel,  laws  of,  i,  519  ?. 

Howitt,  n,  218  f.,  230  f. 

Huber,  in,  599. 

Hullmann,  in,  3S5. 

Human  nature,  essential  sameness 
of,  II,  5  (Kohler). 

Human  sacrifice,  i,  115  (Tacitus); 
II,  347. 


Huneefa,  Abu,  in,  423. 
Hyades,  in,  556. 

Hypotheca,  n,  455,  473  f. ;  in,  617, 
622,  625  f.,  631. 

I 

Iceland,  the  Njals  Saga,  i,  122  f. ; 
criminal  law  of,  n,  127  ;   isolation 
of  law  of,  in,  204. 
Iliad,  the,  i,  3. 

Imitation  theory,  of  legal  institu- 
tions, n,  36  f.  (Tarde) ;  criticism 
of,  II,  55  f.  (Girard) ;  imitation 
preceded  by  invention,  n,  46; 
three  forms  of  imitation,  n,  52  f. ; 
in  evolution  of  procedure,  ii,  430 ; 
considered,  in,  172  (Picard). 

Immunity,  in  primitive  markets,  ii, 
430.     See  Sanctuary. 

Incest,  taboo  against,  i,  316 
(Kaffirs) ;  purchase  marriage  may 
arise  from,  i,  317,  ii,  81 ;  culture 
creates  a  "horror  naturalis"  of, 
II,  216 ;  horror  of,  instinctive,  ii, 
248  f. 

Individual  ownership,  i,  255  (Eski- 
mos);  I,  234  (Arunta);  i,  286 
(Wyandots) ;   i,  345  (Fanti). 

Inductive  method,  basis  of  ethno- 
logical jurisprudence,  n,  10. 

Infamy,  n,  357  f. ;  use  of,  as  the 
cause  of  legal  science,  in,  417  f., 
429  f . 

Infanticide,  among  the  Urabunna, 
I,  228 ;  n,  324  (Arabs) ;  relation 
of  geographic  environment  to,  in, 
230.     See  Abortion. 

Inheritance.  See  Succession  ; 
Will. 

Initiation  Ceremonies,  i,  223  f. 
(Australia). 

Injuries.  See  Punishment  ;  Blood 
Revenge  ;   Composition. 

Inquest,  illegal,  i,  145,  192  f.  (Ice- 
land) ;  bf  nine  neighbors,  i,  151, 
153,  178  (Iceland);  protest 
against,  i,  163,  191  f. ;  finding  of, 
I,  195  f. ;  disqualifications,  i,  192 
f.     See  Procedure. 

Institutions,  defined,  in,  81  (Maz- 
zarella) ;  method  of  restoring  or 
projecting  incomplete,  in,  87  f. ; 
intensity  and  diffusion  of,  in,  88 ; 
normality  of,  in,  89 ;  poly- 
morphic, III,  89;  sympathy  as 
basis  of  survival,  in,  392  f. ;  in, 
409 ;  degeneration  in  the  evolu- 
tion of,  in,  543  f. ;  survival  of,  in, 
567  f . 

Intention,  not  distinguished  in  prim- 
itive law,  n,  129.  140  f. 

Interest,   i,   108   (Tacitus);    i,   132 


690 


INDEX 


(Iceland) ;  i,  401,  402,  406  (Bab.) ; 
I,  480  f .  (Manu) ;  origin  of,  ii, 
412  f . ;  survey  of  evolution  of,  ii, 
531  f . ;  in  Indian  loan  contract, 
III,  133  f.,  136  f. 

Interpreters,  function  of,  in  com- 
merce, II,  409. 

Interregnum,  i,  75. 

Intichiuma  Ceremonies,  i,  223  f. 
(Australia). 

Invention,  an  expression  of  logic,  ii, 
49  f. 

Involuntary  homicide,  i,  596  f. 
(Greek) ;  must  be  atoned,  i,  315 
(Kaffirs) ;    ii,  141  f. 

Irrigation,  regulation  of,  i,  403 
(Bab.). 

Isseus,  III,  390;  speeches  of,  com- 
pared with  Cicero,  iii,  420. 

Italian  Penal  Code,  iii,  265. 

Izoulet,  method  of,  criticized,  iii,  5. 


Jackson,  Hughlings,  hi,  559. 

Jhering,  ii,  642 ;  on  the  influence  of 
jurists.  III,  175 ;  on  the  heuristics 
of  law.  III,  179  ;  nature  of  law,  iii, 
236 ;  III,  249  ;  in,  354  ;  criticized, 
III,  426  f . ;  on  the  Struggle  for 
Law,  III,  440  f . ;   in,  670. 

Johnson,  John  Hemsley,  on  Rudi- 
mentary Society  among  Boys,  in, 
316  f. 

Joint  family,  i,  328,  345,  348,  372 
(Fantis) ;   n,  378. 

Jowett,  III,  459. 

Judge.     See  Justice  ;   Courts. 

Judgment  of  God.     See  Ordeal. 

Junod,  method  of,  approved,  iii,  157 
(n.). 

Jural  activity,  defined,  in,  80  (Maz- 
zarella). 

Jural  acts,  simple  and  complex,  in, 
80  (Mazzarella). 

Jural  ethnology,  defined,  in,  78 
(Mazzarella) ;  special  (analytic), 
and  general  (comparative),  in, 
79  ;   morphology,  in,  80. 

Jural  genealogy,  defined,  in,  93 
(Mazzarella) ;  laws,  in,  96 ;  re- 
construction of  process,  in,  97 ; 
comparative,  in,  101. 

Jural  norm,  distinguished  from  legal 
precept,  in,  82  (Mazzarella). 

Jural  organization,  bases  of,  in,  82. 

Jural  phenomena,  causes  for  the 
variation  of,  in,  182  (Nardi- 
Greco). 

Jural  philosophy,  method,  in,  98  f. 
(Mazzarella) ;  comparative,  in, 
103 ;  example  of  method  of  com- 
parative, III,  106  f. 


Jural  practice,  defined,  iii,  80  (Maz- 
zarella). 

Jural  psychology,  method,  in,  98 
(Mazzarella) ;  comparative,  in, 
102. 

Jural  sense,  not  biological,  n,  21 
(Post). 

Jural  system,  defined,  in,  81  (Maz- 
zarella) ;    ten  orders,  in,  91. 

Juristenrecht,  n,  579;  in,  173  f. 
(Picard). 

Jurists,  as  a  factor  of  legal  evolution, 
III,  173  f .  (Picard) ;  enumerated, 
ni,  174. 

Jury,  Athenian,  composed  of  poorest 
citizens,  i,  82  (Plutarch) ;  of  com- 
purgation, I,  524  (Welsh) ;  i, 
590  f.  (Athens).  See  Arbitra- 
tor ;   Inquest. 

Jus  gentium,  n,  527  f. ;  in,  251, 
363  f.,  647. 

Jus  honorarium,  n,  570. 

Jus  sanguinis,  in,  644  f. 

Jus  soli.  III,  644  f. 

Justice,  administration  of,  in  Gaul, 
I,  90  (Caesar) ;  among  the  Ger- 
mans, I,  93  (Caesar) ;    by  priests, 

I,  98  (Tacitus) ;  action  to  recover 
dowry,  i,  130  f.  (Iceland) ;  for 
man-slaying,  i,  143,  185  f.  (Ice- 
land) ;  arbitration,  i,  165  (Ice- 
land) ;  among  the  Wyandots,  i, 
287  f. ;  Kaffirs,  i,  298  f . ;  i,  465 
(XII  Tab.) ;  i,  469  f.  (Manu) ;  i, 
507  f.  (Lex  Sal.) ;  responsibility 
of  judge  for  wrong  decision,  i,  522, 
534  (Welsh) ;  suit  to  recover 
land,  I,  528  f .  (Welsh) ;  prepara- 
tion and  function  of  a  judge,  i, 
534  (Welsh) ;  proceeding  to  re- 
cover land,  I,  557  f .  (Egypt) ; 
conspiracy  case,  i,  564  f .  (Egypt) ; 
prosecution  for  spoliation  of 
tombs,  I,  571  f.  (Egypt) ;  suit 
concerning  slave,  i,  583  f.  (Bab.) ; 
oration  in  prosecution  against 
Aristocrates,  i,  587  f . ;  gods  as 
judges  in  court  of  Areopagus,  i, 
601 ;  analogous  to  function  in 
biotic  realm,  n,  73;  five  funda- 
mental principles  of,  n,  79  f . ; 
divination  in,  ii,  81 ;  religious 
basis  of  ancient,  n,  105  f . ;  tribal 
assembly  first  germ  of,  n,  125; 
development  of,  n,  128  f . ;  in 
primitive  society  a  private  matter, 

II,  133 ;  early  judge  essentially  a 
peacemaker,  n,  145 ;  evolution 
of,  II,  145  f . ;  kingly  power  in,  n, 
146  ;  compurgation  in,  n,  148  f . ; 
ordeal  in,  n,  150 ;  property  dis- 
putes among  savages,  n,  279  f . ; 
in  primitive  markets,  n,  429  f . ; 


INDEX 


691 


origin  of  ordeal,  oath,  compurga- 
tion, torture,  and  jurisdiction,  ii, 
575  f . ;  kinds  of  ancient  courts,  ii, 
579  ;  no  professional  judges  in  early 
Israel,  ii,  658  ;  no  attorneys  in  Ger- 
manic law,  II,  644  ;  no  attorneys 
in  China,  etc.,  ii,  704;  clerks  of 
court,  II,  667,  704;  development, 
III,  412  f.  See  Procedure. 
Justinian,  118th  novel  of,  in,  201. 


Kabyles,  social  organization  of,  iii, 
32,  33;  III,  497  f. 

Kaffir  law  and  custom,  i,  292  f. 

Keuren,  in,  565. 

Kidnaping,  a  capital  crime,  i,  393 
(Bab.). 

Kina,  in,  556. 

Kinbote,  n,  124. 

Kingship,  cultural  importance  of,  ii, 
98  (Kohler) ;  earliest  king  was  a 
priest,  II,  99  f.  (Fustel) ;  mitigates 
the  blood  feud,  n,  146  f . ;  fol- 
lowed by  aristocracy,  n,  166  f. 
(Maine) ;  in  the  administration 
of  justice,  II,  594. 

Kinship,  i,  261  (Seris) ;  fixes  posi- 
tion in  tribal  society,  i,  290 
(Wyandots) ;  disownment  of,  i, 
326  (Fantis) ;  disowning  father 
or  mother,  i,  386  (Accadia) ;  dis- 
inheritance of  son,  I,  422  (Bab.) ; 
in  savager5%  n,  76 ;  promotion 
in,  II,  77 ;  in  the  tribe,  n,  181  f. ; 
in  the  clan,  n,  187  f. ;  agnatic, 
II,  189;  agnate  and  cognate,  n, 
297  f.,  354;  female,  preceded 
male,  ii,  396. 

Kiyas,  in,  423. 

Kobong,  III,  556  f. 

Koehne,  Carl,  on  Primitive  Com- 
mercial Law,  II,  420  f. 

Kohler,  Josef,  on  Comparative  Legal 
History,  n,  3  f . ;  on  the  Evolution 
of  the  State,  n,  88  f . ;  Chieftainry 
and  Kingship,  n,  96  f . ;  on  Taboo, 
II,  120  f. ;  n,  204 ;  on  Exogamy, 
II,  215  f. ;  Forms  of  Marriage,  n, 
276  f . ;  Children  and  Family  Re- 
lationship, II,  330  f. ;  Adoption 
and  Artificial  Relationship,  n,  341 
f. ;  Historical  Importance  of 
Slavery,  ii,  347  f. ;  on  Barter,  ii, 
435  f . ;  Forms  of  Pledge  Rights, 
II,  452  f. ;  on  Suretyship,  ii,  478 
f. ;  on  Interest,  n,  531  f. ;  Survey 
of  Law  of  Succession,  ii,  536  f . ; 
Survey  of  Law  of  Procedure,  ii, 
575  f . 

Koran,  n,  48  f.,  51 ;  in,  370,  380, 
384,  391,  423,  607. 


Kovalewsky,aii,  180,  553. 

Kuhlenbeck,  on  Internal  and  Exter- 
nal Factors  of  Legal  Develop- 
ment, in,  352  f. 


Labeo,  n,  49;   in,  365,  421. 

Lameere,  in,  559. 

Land,  no  individual  ownership 
among  the  Germans,  i,  93 
(Caesar) ;  partition  of,  among  the 
Germans,  i,  108  (Tacitus) ;  Cat- 
tians  did  not  cultivate,  i,  112 
(Tacitus) ;  Seris  do  not  cultivate, 
I,  258 ;  communal  cultivation  and 
biennial  partition  among  the 
Wyandots,  i,  286;  sales  not 
common  among  the  Fantis,  i, 
365;  suit  to  recover,  i,  528  f. 
(Welsh) ;  partition  deed,  i,  684 
(Bab.  Doc.) ;  no  ownership  of, 
among  ancient  Germans,  Semites, 
and  Slavs,  n,  361 ;  held  in  com- 
mon by  primitive  men,  n,  372; 
traces  in  English  law  of  primitive 
collectivism,  in,  614;  registra- 
tion of  conveyances  of,  in,  617  f. 
See  Property. 

Landlord  and  Tenant,  economic 
basis  of  relation,  in,  258. 

Lang,  Andrew,  n,  151 ;  on  Origin  of 
Totemism  and  Exogamy,  n,  216  f. 

Language,  as  a  factor  in  law,  in,  195, 
201,  207. 

Langue  d'oc,  in,  201,  207. 

Langue  d'oil,  in,  201. 

Lassalle,  in,  255. 

Laveleye,  in,  326,  330. 

Law,  among  the  Cyclops,  i,  39,  40 ; 
in  Iceland,  i,  140 ;  sources  and 
classification  of  Hindu,  i,  469 
(Manu) ;  contract  contrary  to, 
must  be  kept,  i,  528  (Welsh); 
written  and  common,  i,  600 
(Greece) ;  as  a  sociological  pro- 
cess, II,  5  (Kohler) ;  not  based  on 
individual  psychology,  ii,  20 
(Post) ;  imitation  as  basis  of,  ii, 
45  f. ;  logic  as  basis  of,  ii,  49  f., 
53 ;  compared  to  language,  n,  52 ; 
is  teleological,  ii,  53 ;  positive,  is 
a  natural  fact,  n,  63  ;  formal  con- 
ditions of,  II,  04  f. ;  basis  of 
classification  in  savagery  and  bar- 
barism, II,  85  f. ;  religion  as  origin 
of,  II,  104  f.  (Fustel) ;  develop- 
ment of,  n,  128  f.  (Hobhouse); 
forms  of,  II,  162  f.  (Maine) :  criti- 
cism of  Austin's  and  Bentham's 
theorj'  of,  n,  165  (Maine) ;  aris- 
tocracies as  depositaries  of,  n,  167 
(Maine) ;    methods  of  growth  of. 


692 


INDEX 


II,  173  f .  (Maine) ;  Roman,  has 
longest  history,  ii,  174;  lags  be- 
hind social  necessities,  ii,  175 ;  is 
harmonized  with  society  by  fic- 
tions, equity,  and  legislation,  ii, 
175  f. ;  term  (nomos)  does  not 
appear  in  Homer,  ii,  164  ;  of  per- 
sons, II,  181  f. ;  definition  of,  ii, 
278  (Powell) ;  primitive  commer- 
cial, II,  420  f . ;  development  of 
priesthood,  ii,  575  f . ; '  teleological 
and  logical  growth  of,  ii,  579; 
divinatory,  formal,  and  intellec- 
tual stages  of,  II,  638  f . ;  lack  of 
discretion  in  early,  ii,  642  f . ; 
written,  destroys  formalism,  ii, 
648 ;  formalism  of,  based  on  re- 
ligion, II,  640,  649 ;  among  the 
primitive  Semites,  ii,  655  f . ;  rela- 
tion to  geography,  iii,  198 ;  great 
systems  of,  iii,  199;  relation  of 
public  and  private,  iii,  202 ;  in 
cont?<;Ct  and  in  isolation,  iii,  203; 
Darwinism  and,  iii,  204;  lan- 
guage and,  III,  207 ;  competition 
of  English,  with  foreign,  iii,  207 ; 
inertia  of,  iii,  210;  infiuence  on, 
of  geographic  environment,  iii, 
215  f .  (Semple) ;  economic  foun- 
dations of,  III,  234  f .  (Loria) ; 
biologic  basis,  iii,  267  f . ;  racial 
basis.  III,  352  f. ;    religious  basis, 

III,  378  f . ;  psychologic  basis,  iii, 
393  f . ;  evolution  from  folk  cus- 
tom, III,  412  f. ;  political  basis  of, 
III,  417  f . ;  systems  of  Greeks, 
Egyptians,  Assyrians,  Icelanders, 
Irish,  III,  420;  social  basis,  iii, 
440  f. ;  struggle  for,  iii,  440  f . 
(Jhering) ;  stagnation  of  fixed,  iii, 
456  f. ;  arbitrament  and  guaranty, 
in  the  origin  of,  iii,  485  f . ;  govern- 
ment by,  succeeds  military  com- 
mands, III,  507;  evolution  of 
civil.  III,  571  f. ;  evolution  from 
oral,  to  written,  iii,  587  f . ;  crystal- 
lized stage  of.  III,  590  f . ;  evolu- 
tion from,  of  nature  to  positive, 
III,  592  f . ;  evolution  from  local, 
to  general,  iii,  595  f . ;  evolution 
from  simple,  to  complex,  iii,  598 
f . ;  evolution  from  material,  to 
immaterial,  iii,  600  f . ;  evolution 
from  formal,  to  formless,  iii,  602 
f , ;  evolution  from  theocratic,  to 
secular,  iii,  606  f . ;  evolution  from 
criminal,  to  civil,  iii,  609  f . ;  evolu- 
tion from  civil,  to  commercial,  iii, 
610  f . ;  evolution  from  political, 
to  private,  iii,  612  f . ;  evolution 
from  collective,  to  individual,  iii, 
613  f . ;  evolution  from  esoteric, 
to  popular.  III,  617  f. ;    evolution 


from  the  outward  act  to  the  mental 
act,  III,  619  f . ;  evolution  from 
rights  in  rem  to  rights  in  personam, 
III,  620  f . ;  evolution  from,  of 
nominate  to  innominate  relations, 
III,  625  f . ;  evolution  from  con- 
crete to  abstract  rights,  iii,  629  f . ; 
evolution  of,  from  immediate  to 
deferred  rights,  iii,  632 ;  evolu- 
tion of  gratuitous  to  aleatory  trans- 
actions, III,  633  f. ;  evolution  of, 
from  regulation  to  liberty  of  con- 
tract, III,  636  f. ;  evolution  of, 
from  unilateral  to  bilateral  agree- 
ments, III,  640  f . ;  evolution  of, 
from  family  to  individual  rights, 
III,  642  f. ;  evolution  from  ethnic 
to  territorial,  iii,  644  f. ;  private  in- 
ternational, III,  644  f*;  evolution 
of,  from  exclusion  to  admission  of 

-  foreigners,  iii,  647  f . ;  evolution 
of,  from  violent  to  peaceable 
methods,  iii,  649  f . ;  evolution  of, 
from  oral  to  written  to  oral  forms, 
III,  654  f . ;  ^  evolution  of,  from  im- 
movable to  movable  property,  iii, 
658  f . ;  evolution  of,  from  reality 
to  fiction.  III,  660  f . ;  intensity  of 
evolutionary  movement  of,  iii, 
662  f . ;  the  perpetual  evolution 
of.  III,  667  f . ;  general  aspects  of 
evolution  of,  iii,  667 ;  external 
and  internal  evolution  of,  iii,  668 
f . ;  fixed  and  mobile  parts  of,  iii, 
669  f . ;  abstract  and  concrete  in 
evolution  of,  iii,  673 ;  importance 
of  the  historic  aspects  of,  iii,  677  f . 

Law  and  geography,  iii,  198  f. 
(Randall) ;  influence  of  geo- 
graphic environment,  iii,  215  f. 
(Semple). 

Laws,  dispensing  of,  committed  to 
the  nobility,  by  Theseus,  i,  60  ;  of 
Lycurgus  not  reduced  to  writing, 

I,  67;  called  "rhetras"  because 
of  divine  revelation,  i,  68;  of 
Solon,  I,  81 ;  of  Draco,  i,  81 ; 
making  and  changing  of,  in  Ice- 
land, I,  149  ;  Accadian,  i,  385  f . ; 
Code  of  Hammurabi,  i,  387  f . ; 
Hebrew,  i,  443  f . ;  Edict  of  Harm- 
hab,  I,  446  f . ;  of  Gortyn,  i,  453  f . ; 
of  Rome  (xii  Tab.),  i,  465  f. ;  of 
Manu,  I,  469  f . ;  Lex  Salica,  i, 
500  f. ;  ^thelbirht's  Dooms,  i, 
512  f. ;  of  Howel,  i,  519  f . ;  con- 
cerning murder  and  homicide,  i, 
591  f.  (Greece) ;  privilegium,  i, 
606;    religious  origin  of  ancient, 

II,  104  f . ;  ancient,  immutable,  ii, 
105  ;   contradictory,  held  in  equal 

I      respect,  ii,  107  ;  were  sung  before 
I      written,    ii,    108;     formulas    of, 


INDEX 


693 


secret,  ii,  109;  codified  in  bar- 
barism and  civilization,  iii,  53  f. 
See  Codes. 

Law  Speaker,  i,  147,  194,  195;  ii, 
127. 

Lawsuits,  cause  of,  removed  in 
Sparta,  i,  73. 

Lawyers,  in  Iceland,  i,  123  (Mord), 
I,  '132  (Njal),  I,  143  (Thorod  and 
Skapti),  I,  1G2,  180,  192  f.  (Thor- 
hall),  I,  180  (Evjolf),  i,  181  (Thor- 
kel) ;  origin  of,  ii,  110  f.  (Maine) ; 
attorneys  unknown  m  Germanic 
law,  II,  644;  no  attorneys  in 
China,  etc.,  ii,  702,  704 ;  arise  in 
half-way  ci\alization,  in,  54,  58. 

Lease,  of  land,  i,  193  (Iceland) ;  ii, 
351  f.  (Fantis) ;  i,  400  f.  (Bab.) ; 
I,  681  f.  (Bab.  Doc.) ;  provision 
against  sub-letting,  i,  694  (Assyr- 
ian Tab.). 

Le  Bon,  on  races,  in,  167 ;  on  race 
and  variety,  in,  168 ;  in,  171 ; 
on  the  influence  of  the  past,  in, 
177  ;   in,  283,  353. 

Legal  institutions,  hunger  and  sex 
as  generating  forces  of,  n,  5 ;  per- 
sistence of,  II,  9  (Kohler) ;  origin 
of,  II,  36  f.  (Tarde) ;  imitation 
theory  of,  ii,  36  f. ;  criticism  of 
imitation  theory  of,  ii,  55  f. 
(Girard). 

Legis  Actio,  i,  620  f. ;  five  forms  of, 

I,  621  (Gaius) ;  ii,  516  f.,  586  f., 
597,  670  f . ;   in,  339. 

Legislation,  as  an  agency  of  legal 
growth,  II,  175  f. ;  limitations  of, 
in,  164;   boy,  ni,  332  f. 

Legitime,  in,  254  f. 

I^ist,  B.  W.,  II,  204,  206  f. ;  on  the 
Fides  Commandment,  n,  481  f. ; 
in,  360  f.,  382. 

Leod  geld,  i,  513. 

Le  Play,  classification  of  societies, 
III,  43. 

Lerov-Beaulieu,  in,  289. 

Letourneau,  n,  43,  440;  in,  268, 
273. 

Levirate.     See  Marriage. 

Lex  Salica,  i,  500  f. ;  ii,  4,  124 ;  dis- 
tress in,  II,  595. 

Lex  talionis,  i,  409,  427,  428,  430  f. 
(Bab.);  i,  448  (Egypt);  i,  491 
(Manu) ;  in  the  clan,  n,  82 ;  the 
rule  in  all  early  societies,  n,  122  f. ; 
earliest  and  simplest  method  of 
retaliation,  n,  133,  139 ;  in  com- 
mercial law,  II,  424 ;  ii,  666 ;  in, 
649. 

Libertv,  unknown  in  ancient  State, 

II,  92  f. 

Limitations,  formalistic  basis  of,  ii, 
645. 


Linnaeus,  classification  of,  in,  17. 

Lippert,  in,  381. 

Liszt,  classification  of  societies,  in, 
36. 

Litis  contestatio,  ii,  670. 

Litkaufer,  n,  426. 

Loan,  I,  364  (Fanti) ;  of  money,  i, 
401  f.  (Bab.) ;  repayable  in  grain, 
I,  402  (Bab.);  i,  682,  683,  685, 
686,  689,  690  (Bab.  and  Assyr. 
Tab.) ;  i,  698  f.  (Kap.  Tab.) ;  in 
Roman  law,  ii,  518  f.  (Sohm) ; 
jural  genealogy  of,  in  India,  in, 
133  f.  (Mazzarella). 

Locke,  II,  202 ;   in,  234. 

Logic,  as  a  source  of  law,  n,  49  f., 
695. 

Lombroso,  stigmata  of  criminality, 
III,  263. 

Loria,  in,  192 ;  on  Economic  Foun- 
dations of  Law,  III,  234  f . ;  in,  562. 

Lost  property,  recovery  of,  i,  391 
(Bab.) ;  punishment  for  false 
claim,  I,  392  (Bab.) ;  false  claim 
compensated,  i,  411  (Bab.) ;  law 
of,  I,  471  (Manu);  i,  541  f. 
(Welsh). 

Lubbock,  Sir  John,  in,  317,  351. 

Lucumones,  Etruscan,  were  magis- 
trates, military  chiefs,  and  pon- 
tiffs, II,  100. 

Lycurgus,  division  of  land,  i,  63; 
abolished  gold  and  silver  coin,  i, 
64;  established  a  common  table, 
I,  65;  laws  of,  not. reduced  to 
writing,  i,  67  ;  religious  character 
of  laws  of,  II,  105;  laws  of,  at- 
tributed to  Apollo,  II,  106;  as  a 
lawmaker,  in,  175 ;   in,  414. 

Lyell,  on  variation  in  language,  in, 
205. 

Lying,  detection  of,  considered  a 
joke  by  Eskimos,  i,  238;  per- 
mitted in  Kafi&r  procedure,  i,  dl4. 

M 

MacDougall,  II,  151. 

Mackinder,  H.  J.,  founder  of  Oxford 
school  of  Geo^aphy,  in,  199. 

McLennan,  criticism  of  patriarchal 
theory,  n,  199  f.,  n,  398,  587 ;  in, 
213,  283. 

Maffia,  III,  239. 

Magic,  use  of,  in  Roman  law,  in,  604. 

Magistracy,  i,  92  (Gauls) ;  i,  93,  101 
(Germans) ;   ancient,  n,  580  f . 

Magna  Charta,  in,  374. 

Maine,  Sir  Henry,  n,  38  f .,  51 ; 
on  Religious  Element  in  Hindu 
Law,  II,  110  f . ;  Forms  of  Law, 
n,  162  f. ;  Methods. of  the  Law's 
Growth,   II,   173  f . ;    patriarchal 


INDEX 


theory,  ii,  197  f.,  700  f. ;  Patria 
Potestas,  II,  291  f . ;  Theories  of 
Slavery,  ii,  350  f . ;  Early  History 
of  Property  and  Village  Com- 
munity, II,  380  f . ;  II,  392,  394 ; 
Early  History  of  Contract,  ii, 
498  f . ;   Testamentary  Succession, 

II,  553  f . ;  Primitive  Legal  Reme- 
dies, II,  586  f . ;  generaUzations  of, 
criticized,  iii,  154  f . ;  iii,  209,  213, 
239  ;  reliance  on  zoology,  iii,  283  ; 

III,  321,  339;  criticized,  in,  353, 
427,  465,  ^92  f . ;  criticized,  in, 
532,  539.  ^'\.    . 

Malekites,  ii*,-  50. 

Manavic  period,  jural  genealogy  of 

loan  in,    in,    135   f.,    140    (Maz- 

zarella). 
Mancipatio,   ceremony  of,   n,   109, 

371 ;    II,  389,  493,  499,  503,  513, 

518  f.,  567  f. ;    in,  601,  617,  619, 

623,  631  f. 
Manfine,  triple,  i,  165,  208 ;  double, 

I,  208  (Iceland). 
Mansurarii,  in,  550. 

Manu,  laws  of,  i,  469  f . ;  contra- 
dictory provisions  of,  on  inherit- 
ance, II,  107 ;  laws  of,  compared 
with  Leviticus,  n,  108;  an  ideal 
code,  II,  170  f . ;  laws  of  marriage, 

II,  313  f . ;  on  adoption,  n,  344 ; 
on  inheritance,  ii,  546  f . ;  rescis- 
sion in.  III,  634. 

Manus,  n,  330,  500. 

Manus  injectio,  ii,  589 ;   in,  621. 

Manuum  consertio,  i,  466  (vi,  5) ; 

III,  487. 

Markets,  border,  i,  594  f . ;  history  of, 
II,  409  f . ;  peace  of,  n,  410 ;  safety 
of  strangers  in  African,  n,  423 ; 
evolution  of  peace  of,  n,  427  f. 

Marriage,  brothers  and  sisters,  i,  40, 
41  (Homer) ;  regulations  of  Lycur- 
gus,  I,  69 ;  by  capture,  i,  69  (Plu- 
tarch) ;  law  of  Solon,  i,  83 ;  in 
Britain,  i,  89  (Caesar) ;  sacred 
among  the  Germans,  i,  104  (Taci- 
tus) ;  by  purchase  in  Iceland,  i, 
124  f . ;  ceremony  of,  in  Iceland,  i, 
127 ;  arranged  by  father  for  son, 
I,  149  (Iceland) ;  regulations  in 
Australia,  i,  214  f. ;  group,  i,  215 
f.,  232,  233  (Australia) ;  customs, 
I,  216  f.  (Australia) ;  among  Eski- 
mos, I,  241  f. ;  among  Seris,  i,  269 
f . ;  probationary,  i,  271  f.,  275; 
arranged  for  children,  i,  241 
(Eskimos) ;  ethnogamic,  i,  275  f. ; 
among  Wyandots,  i,  284  f . ; 
Kaffir  customs,  i,  294,  305  f . ;  pur- 
chase, I,  320  f.  (Kaffir) ;  Fanti  cus- 
toms, I,  332  f . ;  contract  necessary 
to  valid,  I,  412  (Bab.) ;   effect  on, 


of  absence  and  desertion,  i,  414 
(Bab.) ;  son  to  be  provided  with 
wife,  I,  421  (Bab.) ;  widow  may 
remarry  on  condition,  i,  424 
(Bab.) ;  laws  of  Gortyn,  i,  459 
f . ;  sale  of  bride,  i,  485  (Manu) ; 
purchase,  i,  515,  518  (Eng.) ;  laws, 
I,  523  f .  (Welsh) ;  contract  of,  i, 
678  f.   (Egypt) ;    contract  tablet, 

I,  687 ;  examples  of  levirate,  n, 
25  f . ;  levirate,  a  feature  of  clan 
system,  n,  30  f . ;  regulation  in 
tribal  organization,  n,  80 ;  pur- 
chase, may  arise  from  incest,  n, 
81 ;  by  wager  of  battle,  capture, 
and  choice,  n,  81 ;  in  the  clan 
systern.,  n,  195 ;  beena,  n,  201 ; 
varieties  of,  in  primitive  society, 

II,  237  f.,  255  f.  (Hobhouse) ;  sur- 
vey of  forms  of,  n,  276  f .  (Kohler) ; 
law  of  tribal,  n,  277  f.  (Powell) ; 
in  Greece  and  Rome,  n,  285  f. 
(Fustel) ;  in  civilization,  n,  301  f . ; 
in  Babylon,  n,  302  f . ;  in  Egypt, 
n,  305  f. ;  in  India,  n,  312  f. ; 
in  China,  n,  318  f . ;  among  the 
Hebrews,  n,  321  f. ;  Arabs,  n, 
324  f. ;  in  Greece,  n,  327  f. ;  in 
modern  Europe,  n,  329  f . ;  in 
Rome,  II,  329 ;  as  a  fides  act,  n, 
489  f .  (Leist) ;  in  savagery  and 
barbarism,  in,  46  (Morgan) ; 
ambilian,  in,  106  f . ;    semundian, 

III,  106;  child  betrothal  rare  in 
ambilian  marriage,  in,  126 ;  rela- 
tion of  patriarchal  levirate  and 
gentilism,  in,  126;  polyandry, 
III,  180,  229;  monogamy  and 
polygamy  in  animal  societies,  in, 
276  f. ;  criticism  of  evolutionist 
theories  of,  in,  532 ;  spiral  curve 
in  evolution  of,  in,  574,  615  f , ; 
became  consensual  contract  in 
Roman  law,  in,  619 ;  violent 
origin,  in,  650. 

Marx,  III,  192,  353,  564. 

Massart,  Jean,  on  Degenerative 
Evolution,  III,  542  f. 

Masuirs,  in,  550. 

Maternal  uncle,  relation  to  sister's 
children,  strongest  tie  among 
Germans,  i,  106  (Tacitus) ;  n,  301, 
337. 

Matriarchy,  the  Sitones  ruled  by  a 
woman,  i,  120  (Tacitus) ;  among 
Seris,  i,  258  f.,  265 ;  woman  head 
of  Wyandot  family,  i,  279; 
women  councillors,  i,  281  f. 
(Wyandots) ;  distinguished  from 
mother  right,  n,  206,  260;  n, 
337  f . ;  in  ambilian  marriage,  in, 
107  f.,  127,  130  ;  in  evolution,  iii> 
574,  616. 


INDEX 


Mazzarella,  Scientific  Method  of 
Generalizing  from  Data  of  Legal 
Evolution,  III,  77  f. ;  method  of, 
compared  with  Post's,  m,  78,  83 ; 
criticism  of  method  of ,  iii,  153  (n.), 
157  (n.). 

Merkel,  Adolph,  on  the  Compromise 
Nature  of  Law,  in,  447  f. 

Mes,  inscription  of,  i,  557  f. 

Method,  criticfue  of,  in  legal  evolu- 
tion, III,  153  f.  (Wigmore). 

Migration,  without  consent,  pro- 
hibited, I.  506  (Lex  Sal.). 

Milk  relationship,  ii,  341. 

Mill,  definition  of  class,  in,  34. 

Minos,  laws  of,  ii,  105;  laws  of, 
attributed  to  Jupiter,  ii,  106. 

Mir,  III,  320,  324,  326,  546.  See 
Village  Community. 

Alishnah,  ii,  50. 

Mohammedan,  legal  system,  in, 
199.     See  Koran. 

Mommsen,  criticized,  in,  428. 

Money,  used  by  ancient  Germans,  i, 
97  (Tacitus) ;  in  development  of 
barter,  n,  408 ;  evolution  of,  n, 
437  f . ;  substitutes  in  boy  society, 
III,  345. 

Monogamy.     See  Marriage. 

Montesc[uieu,  on  the  geographic  im- 
perative of  law.  III,  170 ;  in,  198, 
203,  232,  352. 

Moral  facts,  as  a  cause  of  law,  in, 
185  f.  (Nardi-Greco). 

More,  III,  316. 

Morgan,  Lewis,  ii,  397;  classifica- 
tion of  societies,  in,  47 ;  criticism 
of,  in,  218;    in,  283,  564. 

Morphology  of  legal  ideas,  in,  80  f. 
(Mazzarella) ;  comparative,  in, 
100 ;  universal  system,  in,  101 ; 
summary  of  variations  of  Indian 
loan.  III,  149. 

Mortgage,  i,  362  f.  (Fantis) ;  to  se- 
cure marriage  contract,  i,  679 
(Egypt) ;  I,  695  (Bab.  Tab.) ;  i, 
701  (Kap.  Tab.);  English,  n, 
629  f.     .SVe  Hypotheca. 

Mother  Right,  in  the  clan  system, 
II,  28;  distinguished  from  ma- 
triarchv,  n,  206,  260;  in  Egypt, 
n,  310 i   n,  324. 

Mucins  ScsBvola,  in,  189,  364. 

Muller,  in,  280. 

MuUer.  n,  204  ;    in,  555. 

Mundium,  i,  518;   in,  642. 

Mutualism,  in,  269. 


N 

Name,  right  of,  recognized  by  Wyan- 

dots,  I,  285. 
Nams,  II,  592,  595. 


Naradian  period,  jural  genealogy  of 
loan  in,  in,  136  f.,  140  (Maz- 
zarella). 

Nardi-Greco,  Carlo,  on  Causes  for 
Variation  of  Jural  Phenomena, 
in,  182  f. 

National  system,  of  regimentation, 
n,  73 ;   based  on  territory,  n,  73. 

Natureways,  in,  393. 

Negligence,  i,  431  f.  (Bab.);  not 
distinguished  from  intention  in 
primitive  society,  n,  129  f. 

Nexum,  n,  499,  501  f.,  513,  519  f. ; 
III,  601,  621. 

Ngia-ngiampe,  n,  444. 

Niebuhr,  discovery  of  the  manu- 
script of  Gains,  ii,  586. 

Niyoga,  the,  n,  317. 

Njals  Saga,  i,  122  f . 

Nomos,  n,  164. 

Notice  of  slaying,  i,  151  (Iceland). 

Numa  Pompilius,  i,  74;  laws  of 
(ref.),  n,  105;  laws  of,  attributed 
to  Egeria,  ii,  106. 


O 

Oath,  i,  4,  49  (Homer) ;  of  Faith, 
the  most  solemn,  i,  77  (Plutarch) ; 
laws  of  Solon  confirmed  by,  i,  87 ; 
in  procedure,  i,  137  (Iceland) ; 
pledges  to  obey,  i,  147  ;  supported 
by  word  of  honor,  i,  148  f. ;  in 
suit  of  manslaying,  i,  163,  188  f. ; 
in  blood  feud,  i,  179 ;  vouchers  of, 
I,  199 ;  of  legality  of  inquest,  i, 
194 ;  of  lawful  defense,  i,  197  ;  of 
lawful  prosecution,  i,  199;  not 
used  in  Kaffir  procedure,  i,  314 ; 
in  suretyship,  i,  357  (Fantis) ;  re- 
lieves liability  in  escape  of  slave, 
I,  395  (Bab.) ;  acquits  agent,  i, 
407  (Bab.) ;  decision  based  on,  i, 
453,  454,  460  f.,  463  (Gortyn) ; 
denial  under  oath,  i,  454  f. 
(Gortyn) ;  in  doubtful  suits,  i, 
478  (Manu) ;  in  agreements,  i, 
486  TManu) ;  in  exculpation  from 
slander,  i,  524;  in  exacting  the 
spear  penny,  i,  536  (Welsh);  of 
compurgation,  i,  537,  539 ;  of  de- 
fense, I,  540 ;  lost  property,  i,  542 
(Welsh) ;  damage  by  animals,  i, 
550;  form  of,  i,  576  (Egypt); 
contract,  i,  691  (AssyT.  Tab.) ;  of 
compurgation,  a  substitute  for 
blood  feud,  n,  148;  to  prove 
adultery,  n,  325  note  (Koran) ; 
of  market  peace,  n,  431 ;  con- 
sidered by  Romans  a  pact  with  the 
gods,  II ,  486 ;  in  alliances  and  con- 
tracts, n,  492  f. ;  outgrowth  of 
the  ordeal,  n,  578 ;  and  the  ordeal. 


INDEX 


II,  609  f.  (Glotz);  kinds  of,  ii, 
621  f. ;  the  judges',  ii,  622  f . ; 
contract,  ii,  632  f . ;  false,  ii,  633 
f . ;  relation  to  formalism,  ii,  641 ; 
in  Semitic  procedure,  ii,  660  f. ;  ii, 
692  f.  (Tarde).     See  Procedure. 

Obligations,  relation  of  ambilian 
marriage  to,  iii,  113;  creation 
of.  III,  601  f.     See  Contract, 

Odyssey,  i,  27  f. 

Ordeal,  fire,  i,  289  (Wyandots) ; 
river,  i,  389,  413  (Bab.);  kinds 
of,  I,  389  ;  kinds  of,  i,  478  (Manu) ; 
kettle,  I,  509  (Lex  Sal.) ;  Ger- 
manic formulas,  i,  660  f . ;  origin  of, 
II,  573  f. ;  and  the  oath,  ii,  609  f . 
(Glotz) ;  for  aliens,  women,  and 
children,  ii,  613 ;  to  decide  per- 
sonal status,  II,  615 ;  relation  of, 
to  religious  beliefs,  ii,  616  f. ;  re- 
lation or,  to  formalism,  ii,  641 ; 
in  Semitic  procedure,  ii,  661  f . ; 
little  variation  in  forms  of,  ii, 
691  f.     See  Procedure. 

Organs,  of  law  declaration,  Maine's 
generalization  criticized,  iii,  154  f . 

Outlawry,  i,  10,  41,  47,  55  (Homer) ; 
in  Iceland :  as  defense  to  man- 
slaughter, I,  144,  for  taking  wrong 
step  in  procedure,  i,  145,  against 
heathen  customs,  i,  147,  154, 
greater  and  lesser,  i,  165,  185  f., 
198,  202  f . ;  i,  262  f.,  275  (Seris) ; 
two  grades  of,  i,  289  (Wyandots) ; 
I,  540  f .  (Welsh) ;  for  murder  in 
the  clan,  ii,  82 ;  in  primitive  so- 
ciety, II,  131  f.,  138,  147,  279; 
among  the  Semites,  ii,  655, 

Owen,  III,  280. 

Oxen,  as  money,  i,  6,  7,  32  (Homer) ; 
I,  60  (Plutarch);   i,  295  (KafBrs). 


Page,  Edward  D,,  on  Sympathy 
in  Group  and  Institutional  Sur- 
vival, III,  392  f. 

Palaver,  i,  302  f .  (Kaffirs) ;  ii,  145  f . 

Palladium,  cdurt  of,  i,  602  f. 

Panalua  family,  iii,  46. 

Panyarring,  i,  382  (Fantis). 

Parasitism,  iii,  2^9. 

Parent  Right,  appears  after  dissolu- 
tion of  clan  system,  ii,  28. 

Parishes,  division  of  land  into,  by 
Numa,  I,  78. 

Parricide,  not  a  special  crime,  i,  62 
(Plutarch). 

Patres  conscripti,  i,  61  (Plutarch). 

Patria  potestas,  i,  79  (Plutarch) ; 
in  Gaul,  i,  92  (Caesar) ;  i,  253 
(Eskimo);  i,  329,  347  (Fantis); 
I,  456   (Gortyn) ;    origin,  ii,  84 ; 


description  of,  ii,  197  f .  (Howard) ; 
II,  291  f.  (Maine) ;  in  India,  ii, 
312  ;  in  China,  ii,  319  ;  in  Greece, 
II,  327;  in  Rome,  ii,  329  f.,  354; 
in  law  of  succession,  ii,  560  f . ;  in 
ambilian  marriage,  iii,  112;  iii, 
247,  396,  406,  594. 
Patriarchal  Regime,  i,  8,  31,  40 
(Homer) ;  concm-s  with  nomad- 
ism, II,  74 ;  theory  of,  ii,  196  f, 
(Howard) ;  criticism  of  theory  by 
Spencer  and  McLennan,  ii,  199 
f . ;    starting-point  of  civilization, 

II,  301;     in    India,    ii,    312;     in 
China,  ii,  319 ;    iii,  213, 

Patron  and  client,  i,  61  (Plutarch) ; 

I,  327  (Fantis). 

Pays  du  Droit  Coutumier,  iii,  201 ; 

III,  207. 

F^ays  du  Droit  fierit,  iii,  200,  207, 

580. 
Peculium,  ii,  295. 
Peddling,  ii,  408. 
Penal  Law,  retaliation  the  germ  of, 

II,  123. 

Pentateuch,  partial  synopsis  of,  i, 
443 ;  parallel  references  to  code 
of  Hammurabi,  i,  388  f. 

Personal  belongings,  of  deceased, 
burned,  i,  109  (Tacitus)  ;  ii,  234 
f .  (Urabunnas) ;  i,  286  (Wyan- 
dots) ;  II,  449 ;  buried  with  the 
dead,  iii,  380  f. 

Personahty,  plural,  i,  668,  673 
(Egypt.  Doc.) ;  loss  of  juristic,  ii, 
353  f . ;  disappearing  in  commer- 
cial relations,  iii,  625  f. 

Persons,  rights  of,  i,  286  (Wyan- 
dots) ;  considered  as  chieftain's 
property,  i,  296,  300  (Kaffirs); 
wholly  dependent,  in  ancient 
State,  II,  92  f. ;  law  of,  ii,  181  f . ; 
classification  of,  iii,  240;  miser- 
abiles  personae,  iii,  608;  evolu- 
tion of  law  of.  III,  615  f, 

Petrucci,  R.,  on  Natural  Origin  of 
Property  among  Birds,  Beasts, 
and  Fishes,  iii,  288  f. 

Phear,  iii,  320. 

Phratry,  definition  of,  ii,  87 ;  Athe- 
nian, III,  32. 

Phreatto,  court  of,  i,  604. 

Physician,  must  be  provided  by  one 
injuring   another,    i,    429;     com- 

f)ensation     regulated,      i,      431 ; 
lability  of,  i,  431  f.  (Bab.). 
Picard,  on  Factors  of  Legal  Evolu- 
tion, III,  163  f . ;   on  the  Perpetual 
Evolution  of  Law,  iii,  667  f. 
Pignoratio,  ii,  595. 
Pignoris  capio,  ii,  589,  675  f.,  700, 
Pineles,  method  of  comparative  law, 

III,  153  (n.). 


INDEX 


697 


Plato,  ideal  code  of,  ii,  93  ;  on  laws, 
II,  107 ;  family  as  unit  of  State, 
II,  19G;   III,  316;   in,  379. 

Pledge,  to  keep  peace,  i,  145,  166; 
to  obev  law,  i,  147 ;   of  the  hand, 

I,  164,^208,  209  (Iceland) ;  of  the 
person,  i,  3o8,  362  (Fantis) ; 
classification,  i,  362  f.  (Fantis) ; 
of  land,  I,  401  f.  (Bab.) ;  not  lost 
by  limitation,  i,  480  (Manu) ;  of 
the  person  in  homicide,  i,  605; 
ser\-iee,  ii,  348;  forms  of,  ii, 
452  f.  (Kohler) ;  idea  of,  ii,  456  f. 
(Wigmore) ;     to   release   distress, 

II,  600  f . ;  in  Indian  loan  contract, 

III,  134,  136. 
Pliny,  III,  384. 

Plutarch,  lives,  i,  59  f . ;   in,  364. 
Political  facts,   as  factors  of  legal 

evolution,  in,  183  (Nardi-Greco). 
Pollock,  Sir  Frederick,  in,  213. 
Pollock  and  Maitland,  n,  152. 
Polyandry,  in  Britain,  i,  89  (Caesar) ; 

prohibited,    i,    284    (Wyandots) ; 

II,  238  f.,  276 ;  relation  to  popu- 
lation, III,  180;  relation  of  geo- 
graphic environment  to,  in,  229; 
economic   foundations,    in,    247 ; 

III,  616. 

Polygamy,  among  Germans,  i,  104 
(Tacitus);  i,  243  (Eskimo);  i, 
269  (Seris) ;  i,  278  (Omahas) ;  i, 
284  (Wyandots) ;  i,  306  (Kaffirs) ; 

I,  337  (Fantis);    ii,  238  f.,  276; 

II,  303  (Bab.) ;    n,  308  (Egypt) ; 

II,  312  (India);  n,  322  (He- 
brews) ;  II,  324  (Arabs) ;  relation 
to  ambilian  marriage,  in,  109; 
relation  to  population,  in,  180; 
relation  of  geographic  environ- 
ment to,  III,  229 ;  in  animal  socie- 
ties, III,  278  f. ;    III,  616. 

Polygenism,  in,  165,  510. 

Polygyny.     See  Polygamy. 

Pontiiex  Maximus,  i,  76. 

Pontifices,  i,  76;  ii,  690;  as  cus- 
todians of  law.  III,  189. 

Population,  as  a  factor  of  legal  evo- 
lution, III,  180  (Picard). 

Posada,  Adolfo,  on  Animal  Societies 
and  Primitive  Human  Societies, 

III,  267  f. 

Post,  A.  H.,  on  Ethnological  Juris- 
prudence, II,  10  f . ;  II,  63  ;  method 
of,  and  of  Mazzarella  compared, 
III,  78,  83. 

Poste,  II,  126. 

Potestas,  origin  of  term,  n,  501. 

Pothier,  in,  202. 

Powell,  J.  W.,  on  Forms  of  Social 
Organization,  ii,  73  f. ;  on  Kin- 
ship, II,  181  f. ;  on  Tribal  Mar- 
riagti  Law,  ii,  277  f. 


Praetors,  religious  duties  of,  n,  582 ; 
urban,  in,  354 ;  edicts  of,  in,  581 
f. ;    III,  594. 

Pre-dharmasutric  period,  recon- 
struction of  loan  evolution  in,  in, 
144  f.  (jNIazzarella). 

Presbyarchy,  in  elan  system,  n,  191. 

Primogeniture,  of  females,  i,  286 
(Wyandots) ;  in  dowry^  i,  307 
(PCaffirs) ;  philosophy  of,  n,  540  ; 
religious  basis,  ii,  551  f . ;  in,  212  ; 
in,  252. 

Privilegium  fori,  in,  608. 

Procedure,  blood  price  arbitration, 
I,  23 ;  wager  of  battle,  i,  130  (Ice- 
land) ;  summons  in  action  to  re- 
cover dower,  i,  133  f. ;  in  blood 
feud,  I,  143  f . ;  denial  of  justice, 
I,  148  ;  suit  for  slaving,  i,  151,  152 
f.,  179  f.,  185  f. ;  transfer  of  right 
of  action,  i,  162 ;  preliminary^ 
steps  enumerated,  i,  191,  201 ; 
plea  to  jurisdiction,  i,  197 ;  pro- 
test against  jurisdiction  made 
before  priest,  i,  197;  i,  287  f. 
(Wyandots) ;  failure  to  observe 
forms,  proof  of  innocence,  i,  288 ; 
ordeal  by  fire,  i,  289;  formality 
of,  I,  291 ;  accused  persons  pre- 
sumed guilty,  I,  302,  314  (Kaffirs) ; 
description  of  Kaffir  lawsuit,  i, 
302  f.,  313  f . ;  ii,  608 ;  enforcement 
of  debts,  I,  381  (Fantis) ;  unlawful 
to  alter  judgment,  i,  390  (Bab.) ; 
to  recover  lost  property,  i,  391  f., 
411  f. ;  river  ordeal,  i,  389,  413 ; 
suit  against  agent,  i,  407  ;  against 
a  principal,  i,  407 ;  appointment 
of  judges,  I,  450  f.  (Egypt) ;  local 
courts,  I,  451 ;  suit  concerning 
slave,  I,  453 ;  suit  for  divorce,  i, 
454  (Gortyn) ;  partition,  i,  457 ; 
property  of  heiress,  i,  460  f. ; 
suretyship,  i,  461 ;  method  of  de- 
cision, I,  463;  summons,  i,  465 
(xii  Tab.) ;    trial  and  judgment, 

I,  465;    feigned  combat,   i,  466; 

II,  590;  king  as  judge,  i,  469 
(Manu) ;  suit  to  recover  money, 
I,  473  f. ;  kinds  of  ordeal,  i,  478 ; 
summons,  i,  500  (Lex  Sal.) ;  col- 
lection of  debt,  I,  507  f . ;  credi- 
bility of  witnesses,  i,  525  f. 
(Welsh) ;  suit  concerning  land,  i, 
528  f . ;  lost  property,  i,  542 ;  suit 
of  Mes,  I,  557  f .  (Egypt) ;  con- 
spiracy case,  I,  564  f . ;  prosecu- 
tion for  spoliation,  i,  571  f . ; 
arrest,  i,  581  f.  (Bab.) ;  suit  con- 
cerning slave,  I,  583  f . ;  oration 
against  Aristocrates,  i,  587  f. 
(Demos.);  sacramental  action,  i, 
620  f.  (Rome) ;    defense  of  Milo, 


698 


INDEX 


I,  623  f . ;  slaves  as  witnesses,  i, 
645;  religious  character  of,  ii, 
105  f . ;  tribal  assembly  first  germ 
of   judicial   proceeding,    ii,    125; 

II,  573  f . ;  survey  of,  ii,  575  f. 
(Kohler) ;  religion  in,  ii,  575  f . ; 
the  oath  in,  ii,  578;  compurga- 
tors, II,  578 ;  torture,  ii,  578 ;  no 
distinction  between  civil  and 
criminal,  ii,  579;    ancient  courts, 

II,  579;  primitive  remedies,  ii, 
586  f.  (Maine) ;  sacramental 
action,  arbitration,  distress,  ii, 
586  f . ;  voluntary  jurisdiction  in 
Brehon  law,  ii,  603 ;  formalism 
in,  II,  643  f . ;  party  participa- 
tion, II,  644;  Semitic,  ii,  654  f . ; 
divine  authority  for  Semitic  deci- 
sions, II,  660  ;  ancient  Roman,  ii, 
668  f .  (Sohm) ;  legis  actiones,  ii, 
670  f . ;  formulary,  ii,  678  f . ;  evo- 
lution of,  II,  691  f .  (Tarde) ;  rela- 
tion of  ambilian  marriage  to,  iii, 
121  f . ;  organ  of  law  declaration, 
Maine's  generalization  criticized, 

III,  154  f . ;  primitive  importance 
of.  III,  239 ;  in  boy  societies,  iii, 
335  f , ;  arbitrament  and  guaranty, 
III,  485  f . ;  development  of,  under 
clerical  influence,  iii,  604;  for- 
mality in  modern,  iii,  605;  the 
judicial  duel,  iii,  608;  civil  and 
criminal  confused,  iii,  609  f . ;  evo- 
lution from  violent  to  peaceable 
methods,  iii,  649  f . ;  evolution 
from  oral  to  written  to  oral  forms, 
III,  655  f. 

Process  of  legal  evolution,  iii,  499  f . ; 
evolution  of  social  structures,  iii, 
501  f.  (Ward) ;  social  integration 
and  differentiation,  iii,  514  f. 
(Spencer) ;  planetary  theory  of 
the  law's  evolution,  iii,  531  f. 
(Wigmore) ;  degenerative  evolu- 
tion, III,  542  f.  (Demoor) ;  in  civil 
law.  III,  571  f.  (De  la  Grasserie) ; 
spiral  curve  of,  ii,  572  f . ;  the 
perpetual  evolution  of  law,  iii, 
667  f.  (Picard). 

Proculians,  ii,  50 ;  iii,  250. 

Procuratio,  iii,  624  f. 

Progenism,  as  a  factor  of  legal  evo- 
lution, III,  178  (Picard). 

Progress,  geographic  checks  to,  iii, 
226;  geographical  theory  of,  iii, 
232 ;  the  mystery  of,  iii,  451  f . ; 
causes  and  conditions  of  supe- 
riority, III,  464  f. ;  degeneration 
in,  III,  559  f . ;  direction  of,  iii, 
573  f . ;   theory  of  jural,  in,  670  f. 

Promiscuity,  i,  27  (Australia) ;  i, 
249  f .  (Eskimos) ;  i,  317  (Kaffirs) ; 
II,  242  f . ;   III,  246 ;   iii,  615. 


Promise,  original  idea  of,  same  as 
pledge,  or  forfeit,  ii,  457  f . ;  in 
the  "fides"  relation,  ii,  484  f . ; 
in  Roman  law  of  contract,  ii, 
505  f. 

Promissory  note,  i,  406  (Bab.) ;  i, 
682,  683,  685,  686  (Bab.  Doc). 

Property,  division  of,  at  death,  i,  43 
(Homer) ;  regulation  of  use  by 
Solon,  I,  86  (Plutarch) ;  i,  254  f . 
(Eskimos) ;  i,  261  (Seris) ;  i,  286 
(Wyandots) ;  partition  of,  i,  327 
(Fantis) ;  tenures,  i,  348  f . ; 
alienation,  i,  359  f . ;  separate,  of 
mother  and  children,  i,  457  f. 
(Gortyn) ;  specificatio,  i,  466 
(xii  Tab.) ;  of  minors  protected 
by  king,  i,  471  (Manu) ;  different 
tenures  in  same  person,  i,  668, 
670,  676  (Egypt) ;  partition  deed, 

I,  684  (Bab.  Doc.) ;  decision  con- 
cerning a  wall,  I,  684  (Bab.  Doc.) ; 
Assyrian  deeds,  i,  691  f . ;  in  the 
clan,  II,  78 ;  forfeiture  for  cor- 
poral injuries,  ii,  142  f . ;  com- 
munal, in  savagery,  ii,  191,  279; 
religious  basis,  ii,  361  f . ;  common 
ownership  of  crops  but  not  land 
among  Greeks  and  Italics,  ii, 
361  f . ;  inalienable,  ii,  370  ;  land 
in  common,  weapons  individual, 

II,  372;  development,  ii,  372  f. 
(Hobhouse) ;  early  history,  ii,  380 
f.  (Maine) ;  classification,  ii,  386 
f . ;  primitive  transfer  of,  ii,  439  f . ; 
relation  of  ambilian  marriage  to, 

III,  112;  types  of  ownership,  in, 
112;  economic  basis  of,  in,  241, 
248  f . ;  among  birds,  beasts,  and 
fishes.  III,  288  f . ;  a  natural  fact, 
in,  288;  an  instinctive  fact,  in, 
289 ;  original  character  of,  in, 
29Q ;  among  plants,  in,  291 ;  bio- 
logical origin,  in,  292;  earliest 
forms  amor>g  men,  in,  302  f . ; 
tools  and  weapons,  in,  303  ;  cloth- 
ing, III,  305 ;  food,  in,  306 ;  hunt- 
ing land.  III,  307;  among  primi- 
tive pastoral  tribes,  in,  308; 
tenure  in  boy  societies,  n,  318  f. ; 
influence  of  religion  upon,  in, 
378  f .  (Felix) ;  origin  of,  in  death 
and  sacrifices,  in,  380  f . ;  folk 
custom  of,  in,  395  f. ;  private, 
arises  out  of  chief tainry,  in,  506 ; 
degeneration  in  evolution  of,  in, 
544  f.,  614  f. ;  traces  of  collective 
ownership,  in,  614;  evolution 
from  immovable  to  movable,  in, 
658  f. 

Prytane,  ii,  580. 
Prytaneum,  court  of,  i,  604. 
Puchta,  criticized,  in,  442  f. 


INDEX 


Punishment,  by  curse,  i,  86  (Plu- 
tarch) ;  interdiction  from  sacri- 
fices, I,  90  (Caesar),  i,  98  (Taci- 
tus) ;  reHgious  sanction,  i,  98 
(Tacitus) ;  banishment,  i,  208 
(Iceland) ;  death  for  false  accu- 
sation, I,  387  (Bab.);  death  for 
sorcery  (?),  i,  388;  death  for 
temple  stealing,  i,  390;  false 
judgment,  i,  390,  ii,  664  f.  (Bab.) ; 
multiple  fine  for  theft,  i,  391; 
death  for  false  claim  of  ownership, 
I,  392;  death  for  kidnaping,  i, 
393;  death  for  harboring  slave, 
I,  393;  death  for  stealing  slave, 
I,  394  ;  death  for  burglary,  i,  395  ; 
death  for  highway  robbery,  i, 
395 ;  death  by  fire  for  theft  from 
burning  house,  i,  396;  death  for 
breach  of  duty  of  officer,  i,  396; 
drowning  for  cheating  by  tavern- 
keeper,  I,  407 ;  death  for  tavern 
conspiracy,  i,  408;  burning  of 
votary,  i,  408;  branding  for 
slander,  i,  412;  drowning  for 
adultery,  i,  412;  impaUng  for 
death  of  husband,  i,  418 ;  banish- 
ment for  incest,  i,  418;  mutila- 
tion, I,  427  f . ;  injuries  to  and  by 
slaves,  I,  428  f. ;  for  corporal  in- 
juries, I,  427  f. ;  of  slave  for  deny- 
ing master,  i,  442  ;  mutilation  for 
extortion,  i,  447  f.  (Egypt) ; 
bribery  a  capital  offense,  i,  451 ; 
sorcery,  i,  467  (xii  Tab.) ;  mis- 
cellaneous offenses,  i,  467 ;  false 
witness,  i,  475  f.,  478  f.  (Manu) ; 
kinds  of,  enumerated,  i,  479 ; 
fraud  in  bailments,  i,  484 ;  selling 
blemished  maiden,  i,  487;  defa- 
mation, I,  490 ;  assault,  i,  491 ; 
theft,  I,  492  f. ;  mutilation  for  in- 
jury to  higher  caste,  i,  491 ;  mu- 
tilation for  theft,  I,  494  f. ;  adul- 
tery, I,  496;  magic,  i,  504  (Lex 
Sal.) ;  theft,  rape,  arson,  false 
accusation,  murder,  i,  502  f. ; 
theft,  murder,  and  sundry  offenses, 

I,  512  (Eng.) ;  banishment  for 
murder,  i,  526  (Welsh) ;  theft,  i, 
541  f. ;  arson,  i,  545  f. ;  mutila- 
tion for  false  testimony,  i,  561, 
570  (Egypt) ;  curse  for  violation 
of  contract,  i,  585 ;  for  kilhng 
murderer,  i,  594  f. ;  exile  for  mur- 
der, I,  659  (Cicero) ;  incest,  ii,  81 ; 
murder  in  clan,  ii,  82;    death  of 

,  Roman  not  atoned  by  money,  ii, 
125  ;  primitive,  ii,  130  f . ;  *  reli- 
gious offenses,  ii,  132 ;  of  animals, 

II,  143 ;  origin,  ii,  151  f . ;  removal 
of  boundary  stone,  ii,  373  ;  prim- 
itive property  injuries,  ii,  374  f. ; 


violations  of  market  peace,  ii, 
428  f . ;  ordeal  as,  ii,  616 ;  where 
ambilian  marriage  prevails,  iii, 
121 ;  causes  of,  in  primitive  times, 
III,  185  f. 

Purchase  Marriage.    ^See  Marriage. 

Purchase  of  ^'engeance,  first  stage  of 
criminal  law,  ii,  123  f. 

Q 
Querela  inofficiosi  Testamenti, 
III,  638. 

R 

Rabbinovicz,  III,  420. 

Race,  as  a  factor  of  legal  evolution, 
III,  164  f.  (Picard);  iii,  352  f. 
(Kuhlenbeck) ;  iii,  355  f.  (Cham- 
berlain) ;  III,  369  (Bryce) ;  im- 
portance of,  III,  352,  355. 

Races,  natural  and  historic,  iii,  165, 
168  f . ;  hybrid,  iii,  166 ;  hierarchy 
of.  III,  166. 

Randall,  H.  J.,  on  Law  and  Geog- 
raphy, III,  198  f. 

Ratzel,  influence  of  geographical 
surroundings,  iii,  66;  criticism 
of,  III,  367. 

Reception  of  foreign  law,  examples, 
II,  48  (Tarde) ;  based  on  unity  of 
human  mind,  ii,  67;  examples, 
II,  67  f .  (Del,  Vecchio) ;  of  Roman 
law,  II,  641 ;   in,  596. 

Recht,  meaning  of,  in,  442. 

Reich,  Emil,  on  the  Constitutional 
Factor  of  Legal  Development,  in, 
417  f. 

Reincarnation,  belief  in,  i,  219  f. 
(Australia). 

Religion,  basis  of  ancient  State,  ii, 
92  f . ;  source  of  all  authority,  ii, 
99  f . ;  origin  of  ancient  law,  ii, 
104  f . ;  ancient,  was  purely  civil, 
II,  109;  in  Hindu  law,  ii,  110  f. ; 
basis  of  deodands,  ii,  143;  basis 
of  property,  ii,  361  f. ;  basis  of 
inheritance,  ii,  542  f. ;  in  early 
procedure,  ii,  575,  f . ;  not  distinct 
from  law,  ii,  613;  relation  to 
ordeal,  ii,  616  f . ;  and  legal  for- 
malism, II,  640,  649  f. ;  divine 
authority  as  basis  of  judgments, 
II,  660;  as  a  cause  of  law,  in, 
188  f.  (Nardi-Greco) ;  absence  of, 
as  cause  of  excellence  of  Roman 
law,  II,  421 ;  evolution  from  theo- 
cratic to  secular  law,  in,  606  f. 

Replevin,  n,  591,  596,  602. 

Rescission,  of  sale,  i,  441  (Bab.) ; 
I,  693  (Assyr.  Tab.) ;  stipulation 
against,  i,  692 ;  power  of,  the 
general  rule  of  ancient  law,  in, 
634. 


700 


INDEX 


Res  mancipi,  ii,  386  f . ;   ii,  529  f . 

Responsa  prudentum,  iii,  580. 

Responsibility,  collective,  i,  301,  313, 
319,  323  f .  (Kaffirs) ;  slight  dis- 
tinction between  willful  and  acci- 
dental homicide,  i,  315 ;  acci- 
dental injuries  to  property,  i,  320  ; 
collective,  for  debts,  i,  320  (Fan- 
tis) ;  vicarious,  i,  333,  342  ;  of  an 
estate,  i,  392  (Bab.) ;  territorial, 
for  loss  in  robbery,  i,  395 ;  joint, 
of  husband  and  wife,  for  debt,  i, 
418 ;  of  physician,  i,  431  f . ;  of  a 
builder,   i,  433  f . ;    of  bailee,   i, 

435  f . ;   for  injuries  to  animals,  i, 

436  f. ;  collective,  for  theft,  i, 
437 ;  for  slave,  i,  959  (Gortyn) ; 
for  accidental  killing,  i,  467  (xii 
Tab.) ;  of  heirs,  i,  482  (Manu) ; 
for  animals,  i,  488 ;  collective,  for 
offenses  of  women,  i,  525  (Welsh) ; 
no  individual,  in  primitive  so- 
ciety, II,  129  f . ;  collective,  ii, 
138  f . ;  collective,  persists  after 
rise  of  public  justice,  ii,  143  f. ;  of 
father  for  torts  of  sons  or  slaves, 
II,  296 ;  ,  collective  in  suretyship, 

II,  478 ;  absolute  in  early  law,  ii, 
647  f. 

Retail  trade,  ii,  409. 

Retaliation,  i,  467  (xii  Tab.) ; 
deeply  rooted  in  nature,  ii,  122  f . ; 
in  primitive  society,  ii,  130  f . ; 
earliest  method  is  lex  talionis,  ii, 
133.  See  Blood  Revenge  ;  Self- 
Help. 

Revenge,  recompense  for,  i,  13 
(Homer).  >See  Blood  Feud  ;  Re- 
taliation. 

Rex  sacrificulus,  ii,  176. 

Ribot,  III,  559. 

Richard,  Gaston,  Arbitrament  and 
Guaranty  in  the  Origin  of  Law, 

III,  485  f . 
Rita,  II,  207,  490. 

Robbery,  unknown  among  Eskimos, 
I,  238;    defined,  i,  494  (Manu); 

I,  503  (Lex  Sal.). 
Robespierre,  on  foreign  intrusion  of 

law,  III,  171. 
Rokitansky,    on    subjective   forms, 

II,  16  f. 

Romans,  forms  and  organs  of  law 
among,  iii,  155 ;  moral  character 
and  analytical  power,  iii,  358  f. 

Roman  Law,  ^Twelve  Tables,  i,  465 
f . ;  retaliation  in,  ii,  122 ;  has 
the  longest  history,  ii,  174 ;  mar- 
riage in,  II,  285  f . ;  patria  potes- 
tas,  II,  291  f. ;  slavery,  ii,  350  f. ; 
capitis  deminutiq,  ii,  353;  exis- 
timationis  minutio,  ii,  356 ;  law 
of  property,   ii,   380  f . ;    law  of 


contract,  ii,  498  f . ;  sales  and 
loans,  II,  518  f. ;  wills,  ii,  553  f. ; 
procedure,  ii,  586  f.,  668  f. ;  ac- 
ceptance of  in  Middle  Ages,  iii, 
14  ;  technic  of,  iii,  179  ;  reaction 
on  English  common  law,  iii,  200 ; 
compared  with  Germanic  and 
English,  III,  240  f. ;  character  of, 
III,  357  f . ;  the  vera  causa  of,  iii, 
417  f.,  429  f.  (Reich);  absence 
of  religion  in,  as  cause  of  excel- 
lence, III,  421 ;  and  evolutionist 
theories,  iii,  434  f , ;  as  a  source  of 
French  law,  in,  580  f . ;  in,  590 ; 
III,  594 ;  conquest  of,  in,  597 ; 
in,  600  f . ;  contracts  of,  in,  603  ; 
use  of  magic  in,  in,  604;  theo- 
cratic element  in,  in,  607;  con- 
tained no  commercial  law,  in, 
610;  methods  of  transfer  in,  in, 
617;  consensus  in  contracts  of, 
III,  619 ;  method  of  creation  of 
rights  in  personam,  in,  in,  621 ; 
no  assignment  of  obligations  in 
early,  in,  624 ;  no  partial  intes- 
tacy in,  in,  630 ;  liberty  of  tes- 
tation, in,  637;  fictions  in,  in, 
660. 

Roman-Dutch  law,  competition 
with  English  law,  in,  207. 

Romulus,  I,  60  f . ;  establishes  sanc- 
tuary for  fugitives,  i,  60. 

Rossi,  Pellegrino,  in,  260,  265. 

Rousseau,  in,  592. 

Rudorff,  III,  429. 


S 

Sabinians,  II,  50 ;   in,  250. 

Sabinus,  n,  49. 

Sacramental  action,  i,  620;  n,  587 
f.,  593,  671,  699;  in,  487,  494; 
ni,  650. 

Saga,  of  Njal,  i,  122  f. ;  of  Gisli,  n, 
127  f. 

Sale,  of-  slave,  rescission,  i,  441 
(Bab.) ;  warranty  of  title  to  slave, 
I,  441 ;  third,  of  son  emancipates, 
I,  466  (xii  Tab.) ;  in  open  market 
gives  good  title,  i,  485  (Manu) ; 
adulteration  and  underweighing 
prohibited,  i,  485 ;  rescission  of, 
may  be  made  within  ten  days,  i, 
486;  by  a  married  woman  in- 
valid, I,  524  (Welch) ;  sale  tablet 
of  slave,  I,  680,  688,  690;  of 
house,  I,  680,  681,  690;  Assyrian 
deeds,  i,  691  f . ;  religious  cere- 
monies, II,  371 ;  in  early  law  not 
by  individuals,  n,  385 ;  in  Roman 
law,  II,  518  f . ;  formalism,  n, 
646. 

Sales  y  Ferr6,  in,  284  f. 


INDEX 


701 


Sanctuary,  for  fugitives,  i.,  60,  65 
(Plutarch) ;  frithstow,  i,  198  (Ice- 
land) ;  bv  flight  to  another  tribe, 
I,  293,  325  (Kaffirs);  i,  454 
(Gortyn) ;  flight  to,  does  not  re- 
lease surety,  i,  526  (Welsh) ; 
cities  of  refuge,  II,  141  f.,  147. 

Sand,  George,  in,  247. 

Savage,  in,  279  f. 

Savagery.  See  Barbarism;  Clas- 
sification. 

Sav-ignv,  in,  240,  243;  criticized, 
in,  442  f. 

Scandinavians,  forms  and  organs  of 
law  among,  in,  155. 

Schlegel,  in,  280. 

Sehmoller,  in,  192. 

Schrader,  n,  204  f. 

Scots  law,  tenacity  of,  in,  208. 

Seal,  nail  marks  as,  i,  386  (Accadia), 
I,  689,  691  (AssjT.  Tabs.);  in, 
Roman  law  of  wills,  ii,  570. 

Seebohm,  n,  392. 

Seignette,  ii,  47,  60. 

Self  defense,  i,  496  (Manu) ;  law  of 
nature,  i,  634  (Cicero). 

Self  help,  I,  318  (Kaffirs) ;  killing 
burglar,  i,  395  (Bab.) ;  against 
procedural,  i,  453  (Gortyn) ;  i, 
483  (Manu) ;  arrest  of  homicide, 
I,  605  (Greece) ;  basis  of  criminal 
law,  II,  122  f . ;  ancient  Aryan,  ii, 
482;  distress,  n,  586  f.  See 
Procedure. 

Semple,  Ellen  Churchill,  on  In- 
fluence of  Geographic  Environ- 
ment, III,  215  f. 

Senchus  Mor,  n,  599  f. 

Seri  Indians,  i,  257  f. 

Servius  Sulpicius,  in,  364. 

Shamanism,  i,  252,  263;  system  of 
in  the  clan,  n,  78  f. 

Shiregemot,  ii,  595. 

Sibylline  Books,  in,  423. 

Silent  Trading,  n,  421  f.,  440,  442  f. 

Slander,  laws  of  Solon,  i,  83; 
punished  by  branding,  i,  412 
(Bab.) ;  insult,  i,  504  (Lex  Sal.) ; 
insult  of  judge,  i,  523  (Welsh); 
exculpation,  i,  524. 

Slavery,  i,  42,  48,  49,  40,  56 
rHoiner):  i,  79  (Plutarch);  for 
debt,  I,  79 ;  of  women,  i,  85 ;  in 
Gaul,  I,  9(),  92  (C»sar) ;  i,  99 
(Tacitus) ;  as  gambling  stake,  i, 
107:  I,  141,  169  (Iceland);  pro- 
tection of  slave,  I,  386  (Accadia) ; 
dealing  with  slave,  i,  390  (Bab.) ; 
harboring  slave  a  crime,  i,  393; 
for  debt,  i,  410  (Bab.) ;  children 
of,  I,  423;  injuries,  i,  428;  v;ar- 
ranty  in  sale,  i,  441 ;  recovery  of 
slave,   I,   441   f. ;    mutilation  for 


denying  master,  i,  442  ;  in  Egj-pt, 

I,  448;  suit  concerning  slave,  i, 
453  (Gortyn);  Sudras,  i,  499 
(Manu) ;  kinds  enumerated,  i, 
499;  lawsuit,  i,  583  f.  (Bab.); 
slaves  as  witnesses,  i,  645 ;  deed 
of  purchase,  i,  680  (Bab.  Doc.) ; 
sale  tablets,  i,  690,  692,  693;  in 
savage  ■  society,  n,  80 ;  houses 
father  responsible  for  torts  of 
slave,  II,  296;  historical  impor- 
tance of,  II,  347  f. ;  female  slave 
as  concubine,  n,  348  ;  theories  of, 

II,  350  f.  (Maine) ;  for  debt  in 
Rome,  II,  371  f.,  520 ;  in  develop- 
ment of  commerce,  ii,  414;  in 
ambilian  marriage  system,  in, 
115;  in  Indian  loan  contract,, 
in,  136,  137;  in,  252,  260;  in 
Roman  law,  in,  425;  as  a  basis 
of  progress,  in,  468  f. 

Smith,  Adam,  in,  252. 

Smith,  Robertson,  ii,  202. 

Social    life,    essentially   instinctive, 

II ,  18;    function  of  the  male  in, 

III,  281  f. 

Social  organization,  forms  of,  ii, 
73  f. ;  in,  267  f. ;  of  the  stickle- 
back, in,  290  f. ;  evolution  of 
social  structures,  in,  501  f. ;  social 
integration  and  differentiation; 
in,  514  f. 

Societies,  progressive,  are  excep- 
tional, II,  173  f. ;  progressive  and 
stationary,  in,  23;  feudal  and 
gentilic,  in,  83  f . ;  land  basis  of, 
III,  217 ;  nature  of,  in,  267  f. ; 
abnormal,  in,  269;  characteris- 
tics of,  in,  271 ;  paternal  domes- 
tic, III,  272;  monogamous,  in, 
273 ;  mammals,  in,  275 ;  superior 
vertebrates,  in,  279;  rudimen- 
tary, among  boys,  in,  316  f. ; 
origin  of,  in,  514;  degeneration 
in  evolution  of,  in,  552  f. 

Sociology,  relation  to  law,  ii,  52  f., 
62;  its  defects  and  need  of 
method,  in,  3  f.  (Steinmetz) ; 
possibility  of  classification  in,  in, 
12  f . ;  various  svstems  of  classi- 
fication, III,  16  I.;  artificial  and 
natural  classification,  in,  17  f. ; 
purposes  of  classification,  in,  20  f . ; 
attempts  at  classification,  in,  22 
f. ;  vague,  in,  23 ;  Coste,  in,  24 ; 
Fouill6e,  III,  25  f. ;  W^ard,  in,  27 
f. ;  Spencer,  in,  28  f. ;  Durkheim, 
ni,  31  f. ;  Giddings,  ni,  33  f . ; 
Hildebrand,  in,  37  f . ;  Roscher, 
III,  38 ;  Bucher,  in,  38  f. ;  Grosse, 
111,  40  f. ;  Hahn,  in,  41  f. ;  Le 
Play,  III.  43  f. ;  Demolins,  in, 
45;    Buckle,   in,  46;    Taine,  in, 


702 


INDEX 


46;  Vignes,  iii,  46;  Morgan,  in, 
47  f. ;  Sutherland,  iii,  51  f . ; 
Comte,  III,  58  f . ;  Marx,  in,  59 ; 
Vierkandt,  in,  61  f . ;  Ratzel,  in, 
66  f. ;  a  plan  of  classification,  in, 
68  f .  (Steinmetz) ;  catalogue  of 
all  societies,  in,  73  f . ;  general 
classification  in,  must  be  preceded 
by  special,  in,  84  (Mazzarella) ; 
ethnic  classification,  in,  104; 
Spencer,  in,  164;  Gobineau,  in, 
168;  Tylor,  in,  166;  Le  Bon, 
m,  167,  168,  171,  172,  177 ;  Mon- 
tesquieu, III,  170;  Darwin,  in, 
170;  Hegel,  in,  170;  Maine,  in, 
172, 174 ;  Carlyle,  in,  174 ;  Kova- 
levsky,  in,  180;  Asturaro,  in, 
184,  192;  Marx,  in,  192;  De 
Greef,  in,  192;  SchmoUer,  in, 
192  ;  Hildebrand,  in,  192  ;  Loria, 
in,  192 ;  Novicow,  in,  192 ;  de- 
generation in.  III,  580  f. 

Sohm,  Rudolph,  on  Capitis  De- 
minutio,  n,  353  f. ;  on  Existima- 
tionis  Minutio,  n,  356  f.,  596  f. ; 
Ancient  Roman  Procedure,  n, 
668  f. 

Solidary  action,  as  a  factor  of  legal 
evolution,  in,  180  (Picard). 

Solon,  I,  79 ;  law  concerning  murder, 

I,  592  ;  religious  character  of  laws 
of,  II,  104  f . ;  little  system  in  laws, 

II,  169  f. ;  as  a  lawmaker,  in, 
175 ;   ni,  365  f . ;   in,  414. 

Soml6,  Felix,  on  Primitive  Transfer 
of  Goods,  II,  439  f. 

Soonut,  the,  in,  423. 

Speaker  of  the  Law,  i,  147,  194,  195 
(Iceland). 

Specificatio,  i,  466  (xii  Tab.). 

Spencer,  Baldwin,  n,  228. 

Spencer,  Herbert,  ii,  151 ;  criticism 
of  patriarchal  theory,  n,  199  f . ; 
II,  440,  442 ;  classification  of  socie- 
ties, III,  28  f . ;  III,  164 ;  268,  317, 
493,  561  f. 

Spencer  and  Gillen,  n,  240. 

Sponsio,  sacramental  character,  ii, 
108  f . ;  origin  of,  n,  512  f . ;  wager 
basis  of,  II,  590;  in,  339;  origi- 
nally an  appeal  to  the  gods,  in, 
607. 

Starcke,  on  the  primitive  family,  ii, 
200,  203. 

State,  the,  i,  59  (Theseus);  i,  60 
(Romulus) ;  i,  63  (Lycurgus) ; 
evolution  of,  ii,  88  f. ;  omnipo- 
tence of  ancient,  n,  92  f . ;  geo- 
graphic influences  on,  in,  215  f . ; 
land  basis  of,  in,  223 ;  origin  and 
evolution  of,  in,  481 ;  a  spon- 
taneous genetic  product,  in,  507. 

Stealing,  a  virtue  in  Sparta,  i,  72; 


does  not  exist  among  Eskimos,  i, 
237 ;  from  temple  punished  by 
death,  i,  390,  391  (Bab.);  mul- 
tiple fine,  I,  391 ;  false  claim 
treated  as,  i,  391 ;  of  slave,  i, 
394  ;  from  burning  house,  i,  396 ; 
of  water  wheel,  i,  438 ;  distinc- 
tion between  night  and  day,  i, 
467  (XII  Tab.) ;  i,  492  f.  (Manu) ; 
taking  of  necessities  not,  i,  495; 
I,  500  f.  (Lex  Sal.);  i,  512  f. 
(^thel.) ;  I,  539  f.  (Welsh) ;  rare 
in  savagery,  ii,  82;  treatment 
of,  among  primitive  tribes,  ii, 
374  f. 

Steinmetz,  S.  R.,  Classification  of 
Social  Types  and  Catalogue  of 
Peoples,  III,  3  f. 

Stephen,  Mr.  Justice,  ii,  123. 

Stipulation,  n,  505  f . ;  did  not  exist 
in  Germanic  law,  n,  651 ;  in, 
630,  641. 

Stool  property,  i,  345  (Fantis). 

Strabo,  in,  380. 

Stratigraphy,  in,  82  f .  (Mazzarella) ; 
distinguished  from  differentia- 
tion, III,  83;  comparative,  in, 
101 ;  of  the  Indian  loan,  in,  138 
f . ;  summary  of  variations  of 
Indian  loan,  in,  150  f. 

Subjective  method,  Hmitations  of,  in 
science  of  law,  n,  14. 

Succession,  i,  43  (Homer) ;  to 
dowry,  i,  105  (Tacitus) ;  son  in- 
herits, I,  106;  rule  of,  among 
Tencterians  based  on  valor,  i, 
112;  in  Norway,  i,  125;  in  Ice- 
land, I,  131 ;  to  blood  feud,  i,  144, 
152,  172  (Iceland) ;  in  Australia, 
I,  234  f. ;  Eskimo,  i,  246;  off- 
spring of  concubines,  i,  306  f. 
(Kaffirs) ;  i,  322  f. ;  i,  333,  341, 
368  f.  (by  will),  372  f.  (through 
females  only) :  Fantis ;  son  in- 
herits, I,  386  (Accadia) ;  wife 
may  make  will,  i,  417  (Bab.) ; 
to  dowry,  i,  420 ;  sons  inherit,  i, 
421 ;  where  two  sets  of  children, 
I,  421  f. ;  by  votary,  i,  424  f. ;  i, 
455  f.  (Gortyn);  i,  466  (xii 
Tab.) ;  i,  511  (Lex  Sal.) ;  i,  523 
f.  (Welsh);  will  of  Egyptian 
officer,  i,  665  f . ;  of  Sennacherib, 
I,  702 ;  individual  property  not 
inheritable  in  the  clan,  n,  78 ;  re- 
ligious basis  of,  II,  106;  contra- 
dictory provisions  of  Manu  ex- 
plained, II,  107 ;  capacity  of 
slave  for,  n,  351 ;  beginning  of 
rights  of,  II,  448  f. ;  survey  of,  n, 
536  f . ;  religious  origin,  n,  542  f . ; 
relation  of  ambilian  marriage  to, 
III,  117  f . ;   economic  foundations 


INDEX 


703 


of.  III,  251  f.  (Loria) ;  influence 
of  religion  upon,  iii,  388  f .  (Felix) ; 
no  partial  intestacy  in  Roman 
law,  III,  630. 

Suicide,  in,  5  f. 

Summons.     See  Procedure. 

Surety,  hostage  as,  ii,  478 ;  ii,  516 ; 
III,  624. 

Suretyship,  i,  356  f.  (Fantis) ;  i, 
461  (Gortyn);  i,  481  (Manu) ; 
I,  526  f.  (Welsh);  ii,  478;  origin 
of,  II,  516;  in  Indian  loan  con- 
tract, III,  134,  136,  137. 

Sutherland,  classification  of  socie- 
ties, III,  52  f . ;   III,  405. 

Suttee,  II,  312,  319. 

Symbolical  acts,  breaking  sale  tab- 
let, I,  398  (Bab.) ;  moistening 
contract  tablet,  i,  401 ;  in  ancient 
conveyances,  ii,  388 ;  ii,  649  f . ; 
in  primitive  commercial  law,  ii, 
421 ;  in  procedure,  ii,  701 ;  in 
evolution  of  law,  in,  600  f. 

Sympathy,  in  the  formation  of  law, 
in,  186  (Nardi-Greco) ;  in  group 
and  institutional  survival,  in, 
393  f.  (Page). 

Syndiasmic  family,  in,  46. 


Tabieen,  in,  423. 

Taboo,  regulative  of  ma,rriage,  i,  217 
(Australia) ;  against  incest,  i,  316 
Kaffirs) ;  primitive  substitute  for 
law,  II,  120  f. ;  use  of  in  primitive 
society,  n,  131  f. ;  in  the  clan, 
II,  191;  exogamy  as,  n,  216;  to 
protect  property,  n,  373. 

Tacitus,  the  Gerraania,  i,  95;  in, 
327. 

Talassie,  n,  289. 

Talmud,  in,  420. 

Tambookie  (Kaffir)  Customs,  i, 
313  f. 

Tarde,  Gabriel,  on  Origin  of  Legal 
Institutions,  ii,  36  f. ;  on  Evolu- 
tion of  Procedure,  ii,  691  f. ; 
on  social  logic,  in,  181 ;  in,  353 ; 
in,  563 ;  on  judge-declared  law, 
in,  586. 

Technic,  as  a  factor  of  legal  evolu- 
tion, in,  178  (Picard). 

Tengoborski,  n,  383. 

Terminus,  blood  sacrifices  to,  i,  77 ; 
n,  368. 

Testes,  n,  653. 

Theft.     See  Stealing. 

Themistes,  n,  163  f. ;  in,  190. 

Theseus,  i,  59  f. 

Thing  (Iceland),  i,  124  f . ;  ii,  127; 
in,  373. 

Things,  law  of,  ii,  359  f. 


Time,  an  inferior  philosophical  ele- 
ment, II,  6  f. 

Topinard,  in,  277. 

Torrens  System,  in,  614,  618,  665. 

Torture,  n,  578. 

Totemism,  i,  213  f.,  218  f.  (Aus- 
traUa) ;  i,  258  f.  (Seris) ;  i,  279  f. 
(Wyandots) ;  each  clan  has  totem 
name,  n,  77 ;  basis  of  primitive 
State,  n,  88 ;  in  the  clan,  n,  189  ; 
and  exogamy,  n,  215  f. ;  origin 
of,  n,  216  (Lang) ;   n,  396. 

Toynbee,  relation  of  crime  to  in- 
creased wages,  in,  262. 

Traditio,  ii,  389  f.,  529. 

Trials,  i,  23  (Homer);  i,  302  f. 
(Kaffir) ;  concerning  land,  i,  528 
f.  (Welsh) ;  lawsuit  of  Mes,  i, 
557  f . ;  concerning  a  slave,  i, 
583  f.  (Bab.) ;  of  Aristocrates,  i, 
587  f . ;  of  Milo,  i,  623  f . ;  of  GisU 
the  outlaw,  n,  127  f.  See  Pro- 
cedure. 

Tribe,  organization,  i,  204  f.  (Seris) ; 
regimentation  of,  ii,  73 ;  based 
on  kinship,  n,  73 ;  compared  with 
a  confederacy,  ii,  80 ;  definition, 
II,  187  (Powell) ;  relation  to  clan, 
II,  277. 

Tribute,  payment  of,  promotes 
transfer  of  goods,  n,  444  f. 

Tusculum,  ancient  law  of  (ref.),  n, 
108. 

Tutela,  II,  332. 

Twelve  Tables,  of  Rome,  i,  465  f. ; 
religious  character  of,  n,  104  f. ; 
n,  162  f.,  169  f. ;  in,  362,  422, 
427  f.,  490,  534;  liberty  of  tes- 
tation in,  in,  637. 

Tylor,  E.  B.,  ii,  264,  373,  396  f. 


U 

Ultinogeniture,  III,  212. 

Undue  Influence,  law  of  Solon  recog- 
nizes, I,  84. 

Unity  of  Human  Nature,  ii,  65  f. 

Universal  Comparative  Law,  ii,  61  f . 
(Del  Vecchio). 

Universitas  juris,  n,  554  f.,  571. 

Unterkaiifer,  n,  420. 

Urabunna  tribe,  i,  213  f. 

Usucapion,  n,  571 ;   in,  249. 

Usury,  I,  108  (Tacitus) ;  i,  132  (Ice- 
land) ;   I,  401  (Bab.) ;   n,  534  f. 

Usus,  marriage  by,  ii,  330. 


Vacarius,  in,  376. 
Vaccaro,  on  Struggle  and  Adapta- 
tion, in,  473  f. 


704 


INDEX 


Vandervelde,  fimile,  on  Degenera- 
tive Evolution,  III,  542  f. 

Van  Gennep,  ii,  234. 

Vertebrates,  superior,  societies  of 
III,  279  f. 

Vestal  Virgins,  power  to  make  wills, 

I,  76. 

Vico,  III,  435 ;  concept  of  legal  evo- 
lution as  simple  circle,  iii,  536; 
III,  573. 

Vierkandt,  classification  of  societies, 
III,  5,  61  f. 

Vignes,  classification  of  societies, 
III,  46. 

Vikings,  iii,  381. 

Village  community,  i,  103, 108  (Taci- 
tus) ;    I,  346  f .  (Fantis) ;    ii,  378 ; 

II,  380  f .  (Maine) ;    primitive,  ii, 
392  f.  (Gomme).     See  Mm. 

Village  pound,  ii,  592. 

W 

Wadium,  connection  with  the 
promise  idea,  ii,  458  f.  note. 

Wager  of  Battle,  i,  130,  135,  138 
(Iceland) ;  a  refinement  of  the 
blood  feud,  ii,  148 ;  ii,  280,  588 ; 
not  widespread,  ii,  691  f. 

Wales,  laws  of,  i,  519  f . ;  disap- 
pearance of  law  of,  III,  207. 

Ward,  classification  of  societies,  iii, 
27  ;  on  Evolution  of  Social  Struc- 
tures, III,  501  f. ;  interaction  of 
antagonistic  forces,  iii,  503 ;  enu- 
meration of  social  structures,  iii, 
509. 

Warranty  of  Title,  i,  688  (Assyr. 
Tab.) ;  not  favored  in  early  law, 
II,  646. 

Wed,  origin  of,  and  meaning,  ii, 
473  f. 

Weg-reaf,  i,  514. 

Weregeld,  i,  511  (Lex  Sal.) ;  system 
of  compensation,  ii,  136  f . ;  ii, 
142,  391 ;  for  death  of  a  trader, 
II,  423. 

Westermarck,  ii,  157,  203  f. 

Wholesale  trade,  ii,  409. 

Wife  exchange,  i,  244  f.  (Eskimos). 

Wife  lending,  to  beget  children,  i, 
69  (Sparta). 

Wigmore,  John  H.,  on  the  Pledge 
Idea,  II,  456 ;  Critique  and 
Method  in  the  Study  of  the  Law's 
Evolution,  III,  153  f. ;  on  the 
Planetary  Theory  of  the  Law's 
Evolution,  III,  531  f. 

Wilken,  ii,  202. 

Will,  vestal  virgins  could  make,  i, 
76;  law  of  Solon,  i,  83;  undue 
influence  invalidates,  i,  84;  un- 
known to  the  Germans,  i,   106; 


I,  368  f.  (Fantis) ;  wife  may  make, 
I,  417  (Bab.) ;  of  votary,  i,  424  f. ; 

I,  455  (Gortyn) ;  i,  466  (xii  Tab.) ; 
of  an  Egyptian  officer,  i,  665  f. 
(Doc.) ;  of  Sennacherib,  i,  702 
(Doc.) ;     prohibited   by   religion, 

II,  105 ;  philosophy  of,  ii,  541 ; 
no  early,  ii,  549  f. ;  history  of,  ii, 
553  f .  (Maine) ;  function  of  pon- 
tifices  in,  iii,  189 ;  liberty  of 
making  in  xii  Tab.,  iii,  637. 

Witchcraft,  punished,  i,  289  (Wyan- 
dots) ;  disease  or  infirmity  evi- 
dence of,  I,  289 ;  I,  295  (Kaffirs) ; 
I,  388  f.  (Bab.);  belief  in,  uni- 
versal in  the  clan,  ii,  82  ;  punish- 
ment of,  in  primitive  society,  ii, 
131. 

Wite,  I,  513. 

Withernam,  ii,  592. 

Witness,  i,  129  (Iceland);  i,  130 
(action  for  dower) ;  i,  130  (wager 
of  battle) ;  i,  136  f .  (of  summons) ; 
I,  138  (of  handing  over  suit) ;  i, 
138  (pleading) ;  i,  138  (divorce) ; 
I,  143  (wounds) ;  i,  143  (of  suit) ; 
I,  144  (outlawry) ;  i,  146  (recog- 
nition of  law) ;  I,  151  (death 
wounds) ;  i,  163  (of  oath  in  man- 
slaying  suit);  I,  178  f.,  185  f., 
188  f .  (of  suit) ;  i,  189  f .  ^  (testi- 
mony in  manslaughter  suit) ;  i, 
190  f .  (procedure) ;  in  sm-ety- 
ship,  I,  357  (Fantis) ;  i,  367  (sale 
of  land) ;  false  witness,  i,  389 
(Bab.);  bribery,  i,  390;  neces- 
sary in  sale  by  slave  or  a  son,  i, 
390;  I,  411  (deposit);  suit  con- 
cerning slave,  I,  453  f .  (Gortyn) ; 
of  will,  I,  455  (Gortyn) ;  in  dis- 
posal of  child  born  after  divorce, 
I,  455 ;  partition  of  estate,  i,  457 ; 
in  suretyship,  i,  461 ;  of  summons, 

I,  465  (xii  Tab.) ;  false,  killed,  i, 
467;  duties  and  tests  of  credi- 
bility, I,  470  f.,  474  f.  (Manu); 
who  may  be  in  suit  of  creditor,  i, 
474 ;  who  suffers  evil  within  seven 
days  must  pay  fine,  i,  477 ;  in 
boundary  dispute,  i,  489;  cere- 
mony of  affatomie,  i,  506  f.  (Lex 
Sal.) ;  enforcing  debt,  i,  507  f. ; 
woman  cannot  be,  i,  523  (Welsh) ; 
credibility,  i,  525  f. ;  nose  cut  off 
if  testimony  false,  i,  561  (Egypt) ; 
slave  as,  i,  645  (Cicero) ;  of  deed 
or  contract,  i,  680  f.  (Bab.  Doc.) ; 
ancient  Aryan  obligation  of  truth, 

II,  483  f . ;  originally  compurga- 
tors, II,  629 ;  Semitic  law,  ii,  665 
f . ;  proof  by,  universally  used,  ii, 
691;  plurality  of,  ii,  641,  666, 
695.     See  Procedure. 


INDEX 


705 


Women,  laws  of  Solon,  i,  85 ;  i,  412 
f.  (Bab.);  i,  523  (Welsh);  in 
primitive  society,  ii,  237  f . ;  in 
civilization,  ii,  301  f.  See  Mar- 
riage ;  Matriarchy  ;  Polyg- 
amy. 

Wyandot  Indians,  i,  279  f. 


Yajnavalkyan  Period,  jural  gen- 


ealogy of  loan  in,  in,  136  f.,  140 
(Mazzarella). 
Yoosuf,  Aboo,  III,  423. 


Zadruga,  in,  546. 
Zanetti,  iii,  273,  276,  283  f. 
Zenophon,  in,  379. 
Zimmer,  n,  204. 
Zumpt,  III,  430. 


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